J-A29036-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAVAUGHN KIRKLAND : : Appellant : No. 1493 WDA 2024
Appeal from the Judgment of Sentence Entered October 24, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002895-2024
BEFORE: OLSON, J., DUBOW, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 3, 2026
Appellant, Kavaughn Kirkland, appeals from the judgment of sentence
imposed following his convictions for carrying a firearm without a license and
careless driving.1 Appellant challenges the denial of his motion to suppress
the firearm recovered from his vehicle following a traffic stop. We affirm.
The trial court summarized the facts as follows:
Officers Dalton DuBrosky and Daniel Halaszynski were City of Pittsburgh police officers and partners. On or about March 29, 2024, the officers conducted a traffic stop of a vehicle for careless driving in the South Side area of Pittsburgh. Specifically, the [o]fficers testified that the vehicle was stopped for careless driving in a high pedestrian traffic area. Officer DuBrosky credibly testified that [Appellant] was stopped for driving too quickly and carelessly in the area where there is a high volume of pedestrians.
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1 18 Pa.C.S. § 6106a)(1); 75 Pa.C.S. § 3714. J-A29036-25
Upon approaching the vehicle, [o]fficers observed what they described as furtive movements inside the vehicle from the front seat driver. Due to the movements observed in the vehicle, Officer DuBrosky asked if there were any firearms in the vehicle, to which [Appellant] replied no. However, Officer DuBrosky was notified by Officer Halaszynski via a non-verbal cue that there was a firearm in plain view on the front passenger seat.
Trial Court Opinion (TCO), 2/10/25, at 1-2.
Officer Halaszynski seized the firearm, and Appellant was charged with
carrying a firearm without a license, receipt of stolen property, and two
summary offenses. Appellant filed a motion to suppress, which the trial court
denied following a hearing. The parties proceeded to a stipulated bench trial
and the trial court found Appellant guilty of carrying a firearm without a license
and careless driving.2 Appellant filed a timely notice of appeal and complied
with the order to file a Pa.R.A.P. 1925 concise statement. The trial court filed
its responsive opinion, and Appellant raises three issues for our review.
1. Whether the trial court erred when it denied suppression where police officers initiated a traffic stop without probable cause?
2. Whether the trial court erred when it denied suppression where police officers, without reasonable suspicion, subjected [Appellant] to an illegal investigative detention when they did not have reason to believe he was engaged in criminal activity?
3. Whether the evidence was insufficient to convict [Appellant] of Firearms Not to be Carried Without a License where the Commonwealth failed to prove, beyond a reasonable doubt, that [Appellant] had constructive possession of the firearm that was found on the front passenger seat of the vehicle?
Appellant’s Brief at 6. ____________________________________________
2 The Commonwealth withdrew the receipt of stolen property charge, and the
trial court found Appellant not guilty of the remaining summary offense regarding open alcoholic beverages.
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Appellant’s first two issues challenge the trial court’s denial of his motion
to suppress. The following principles dictate our review:
[T]he standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
Appellant’s first issue challenges the validity of the traffic stop, which
was based on the officers’ belief that Appellant was driving carelessly. “For a
stop based on the observed violation of the Vehicle Code or otherwise non-
investigable offense, an officer must have probable cause to make a
constitutional vehicle stop.” Commonwealth v. Harris, 176 A.3d 1009,
1019 (Pa. 2017). Careless driving is a non-investigable offense. See
Commonwealth v. Venable, 200 A.3d 490, 499 (Pa. 2018). To establish
probable cause, the officer
must be able to articulate specific facts possessed by him at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in some violation of some provision of the Vehicle Code. Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.
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Commonwealth v. Cahill, 324 A.3d 516, 523 (Pa. Super. 2024) (quoting
Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004).
The Motor Vehicle Code prohibits careless driving, defined as “driv[ing]
a vehicle in careless disregard for the safety of persons or property[.]” 75
Pa.C.S. § 3714(a). “The mens rea requirement applicable to § 3714, careless
disregard, implies less than willful or wanton conduct but more than ordinary
negligence or the mere absence of care under the circumstances.”
Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010) (internal
quotations omitted).
The Commonwealth offered the following evidence to support a finding
that officers had probable cause to believe Appellant drove carelessly. Officer
DuBrosky testified that he and his partner were in the South Side area of
Pittsburgh on March 29, 2024, and effectuated the stop “after we observed
[Appellant] driving carelessly in a high pedestrian traffic area.” N.T.,
10/24/24, at 6. On cross-examination, Officer DuBrosky agreed that he and
his partner followed Appellant “onto Bingham Street,” and then “around the
market that’s nearby,” which has “very narrow roads” and “vehicles parked
along the side[.]” Id. at 11-12. When Appellant suggested that the presence
of such vehicles “[l]imited the speed that a person can go,” Officer DuBrosky
replied, “[the parked vehicles limit] the speed that they could safely go around
the market[.]” Id. at 12. On re-direct, Officer DuBrosky testified:
Q. And careless driving that could be too fast for conditions as you’ve stated in the body cam?
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A. Yeah. The South Side is a very high pedestrian traffic area especially on weekend nights, like Thursdays through Sundays; a lot of foot traffic. So when vehicles drive at a higher rate of speed it increases the chance of someone getting hurt.
Q. Right. And there’s a lot of bars in that area too?
A. Yeah.
Q. And pedestrians as well?
A. That’s correct.
Id. at 23.3
Appellant alleges that the testimony presented fails to establish
probable cause, as neither officer “testified to specific observations that
indicated [Appellant] was driving with more than ordinary negligence or the
mere absence of care.” Appellant’s Brief at 19. Appellant argues that the trial
court “cite[d] solely to Officer DuBrosky’s blanket statement that he ‘observed
the vehicle driving carelessly in a high pedestrian traffic area,’” which he
submits is unsupported by the record. Id. at 20.
Turning to caselaw, Appellant argues that our unpublished decision in
Commonwealth v. Leas, No. 1541 MDA 2018, 2019 WL 2067761 (Pa. Super.
filed May 9, 2019) (non-precedential decision), persuasively supports the
conclusion that probable cause was lacking.4 In Leas, police officer Duane
3 We take judicial notice that the traffic stop occurred on a Friday. See Commonwealth v. Brown, 839 A.2d 433 (Pa. Super. 2003) (holding a judicially noticed fact is one not subject to reasonable dispute in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).
4 See Pa.R.A.P. 126(b) (authorizing citation to non-precedential decisions filed after May 1, 2019 for their persuasive value).
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Witman was stopped at a traffic light at an intersection he described as “‘highly
traveled’ and the site of many accidents.” Id. at *1 (quoting transcript).
Officer Witman, who was in the rightmost lane, saw Leas’ vehicle in the
adjacent left-turn only lane. Id. Leas was acting “‘fidgety’” and began
“inching past the traffic stop line.” Id. When the light turned green, Leas
“accelerated abruptly, causing his tires to squeal, and turned left onto
Lancaster Avenue. In so doing, Leas turned into the middle lane of travel
instead of the left lane, partially impeding the entrance of traffic from the
opposite side of the intersection.” Id. While the officer testified that “cars
were around,” he “was unable to attest to Leas’s speed beyond stating that
the vehicle’s movement was not smooth and the turn was ‘quick.’” Id. at *3.
The officer stopped Leas for driving carelessly.
The trial court granted suppression and the Commonwealth appealed;
we affirmed, concluding that Officer Witman’s testimony failed to establish
probable cause to believe Leas drove carelessly. We stated that caselaw
“consistently focuse[s] on the creation of a hazard,” and found that the
testimony failed to establish a hazard. Id. at *2. “[T]here is no evidence that
Leas created a hazard by weaving in and out of lanes, fishtailing into the
adjacent lane, endangering pedestrians, risking damage to the curb or nearby
property, venturing into oncoming traffic, or causing other vehicles to swerve
to avoid a collision.” Id. at *3.
We do not agree that Leas involves comparable facts. As Appellant
recognizes, our conclusion therein rested on the Commonwealth’s failure to
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establish any type of hazard. Appellant’s Brief at 21 (arguing that, “[a]s in
Leas, there was no evidence presented that [Appellant] ‘created a hazard’”)
(citation omitted). We agree that there was “was no testimony that officers
observed [Appellant] hit or almost hit a person, another vehicle, or the curb.”
Id. While those acts may be sufficient to establish probable cause, they are
not necessary. “[P]robable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not readily, or even
usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S.
213, 232 (1983). The Leas decision involved one single act of accelerating
rapidly, whereas here Appellant drove his vehicle at a high rate of speed in an
area frequented by pedestrians and where cars were parked along one of the
roads. This incident occurred on a Friday evening at approximately 11:30
p.m.,5 a time when pedestrians were likely to be milling about and walking to
and from the numerous bars in the area. Thus, the testimony established
probable cause to believe that Appellant’s actions were in violation of the
careless driving statute. Therefore, we conclude that officers lawfully detained
Appellant on that basis.
Appellant’s second issue addresses the officers’ actions during the traffic
stop. As Officer Halaszynski approached the passenger side of the vehicle, he
“observed multiple occupants inside the vehicle.” N.T., 10/24/24, at 27.
Appellant was in the driver’s seat, and the remaining three occupants were all ____________________________________________
5 The bodycam footage introduced at the suppression hearing begins as the
officers exit their patrol vehicle. The timestamp bears a time of 11:29 p.m.
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in the backseat. Id. The officer then “observed the pistol sitting on the
passenger seat.” Id. Additionally, the Commonwealth introduced Officer
Zablonski’s bodycam footage, which was included in the certified record on
appeal. The footage shows that Officer Zablonski asked Appellant to step out
of the vehicle approximately fifteen seconds after knocking on Appellant’s
window, with Officer Halaszynski approaching the passenger side. Officer
Zablonski then began a patdown and asked, “You got anything in the car?”
Appellant replied, “No.” Meanwhile, Officer Halaszynski seized the firearm.
Appellant’s argument in support of reversal relies on a combination of
three cases. First, pursuant to Terry v. Ohio, 392 U.S. 1 (1968), which
supplies authority to detain individuals upon reasonable suspicion that
criminal activity is afoot, a potential officer safety concern, standing alone,
does not justify a seizure. See Commonwealth v. Gibson, 333 A.3d 710,
722 n.11 (Pa. Super. 2025) (“[U]nder Terry, an officer cannot manufacture
the basis for a frisk by initiating an investigative detention. The officer safety
rationale permits a frisk during a valid detention, it does not, however,
independently authorize a detention in the first instance.”). Next, in
Commonwealth v. Hicks, 208 A.3d 916, 923 (Pa. 2019), our Supreme Court
held that the mere fact an individual possesses a firearm does not create
reasonable suspicion of criminal activity, as “it is not a criminal offense for a
license holder … to carry a concealed firearm[.]” Id. at 936. Thus, the fact
officers saw a firearm near Appellant did not supply a basis to suspect he was
committing any crime. Finally, Appellant devotes much of his argument to
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our decision in Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021),
which concluded that officers unlawfully prolonged a traffic stop when
questioning a backseat passenger to ascertain his legal entitlement to carry a
concealed firearm. Taken together, Appellant argues that the officers could
not investigate whether Appellant had a license to carry.
We begin with a discussion of Malloy. In that case, Officer Stephen
Henry stopped a vehicle in which Malloy was a backseat passenger. Id. at
145. While speaking to the occupants, Officer Henry noticed Malloy wearing
a lanyard, which prompted him to ask Malloy if he had a firearm as “in his
experience ... it was common for people who worked in armed security
positions at local bars to keep their identification badges in lanyards.” Id.
Malloy replied that he did, explaining that he worked security at a local bar
and that he and the other occupants had just finished their shift. Id. Officer
Henry then asked Malloy to step outside the vehicle, secured Malloy’s weapon,
and investigated whether Malloy could legally carry the firearm. Id. The
investigation took approximately fifteen to twenty minutes, and ended in
Malloy’s arrest. Id. at 146.
On appeal, we agreed with Malloy that Officer Henry unlawfully
prolonged the stop under Rodriguez v. United States, 575 U.S. 348, 350
(2015), as the officer lacked reasonable suspicion that Malloy had engaged in
any criminal activity. Id. at 147. We first determined that the vehicle was
lawfully stopped. Thus, per Rodriguez, the seizure was constitutionally
justified only for “the time needed to handle the matter for which the stop was
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made[.]” Id. We stated that the transcript was “less than definitive” on this
point and thus “assume[d] that Officer Henry’s efforts to verify the driver’s
license, determine the existence of outstanding warrants against the driver,
and confirm the automobile’s registration and proof of insurance were ongoing
when he requested identification from [Malloy] and that mission-related tasks
could not reasonably have been concluded by that time.” Id. at 151.
We then disagreed with the trial court’s conclusion that “Officer Henry’s
request for documentation of [Malloy]’s authority to carry a firearm
constituted an ordinary inquiry incident to the traffic stop that police officers
are permitted to make.” Id. at 153. “[A] passenger’s legal authority to own
or possess a firearm is simply unrelated to a driver’s authority to operate a
motor vehicle, the existence of outstanding warrants against the driver, and
whether a lawfully detained vehicle is properly registered or insured.” Id. at
152. We added that the “seizure of the firearm essentially eliminated any
immediate risk the weapon posed to law enforcement personnel, bystanders,
and occupants of the vehicle for the duration of the stop and transformed the
officer’s pursuit of [Malloy]’s firearms credentials into an inquiry exclusively
aimed at collecting evidence of collateral wrongdoing.” Id. at 153. Finally,
we disagreed that there was independent reasonable suspicion to detain
Malloy. Id. at 154. The trial court therefore erred by denying suppression.
Id.
In Commonwealth v. Hawkins-Davenport, 319 A.3d 537 (Pa. Super.
2024), appeal granted, 333 A.3d 300 (Pa. 2025), we discussed Malloy.
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Officers stopped Hawkins-Davenport for a traffic offense and almost
immediately observed a gun in plain view on the passenger seat. Id. at 541.
The trial court found that the officer seized the firearm before asking any
questions about whether Hawkins-Davenport had a permit, and there was no
evidence that Hawkins-Davenport posed a danger as he did not make
movements towards the firearm. Id. at 542. As a result, the trial court
concluded that the officers unlawfully seized the firearm and ordered
suppression.
The Commonwealth appealed and we reversed. First, we concluded that
the firearm could be seized as a per se matter due to officer safety concerns.
Id. at 546 (“We now find that police officers may, as a reasonable precaution
for their safety, remove a firearm they see in plain view that is accessible by
the driver, during an ongoing valid traffic stop[,] as a matter of course.”).
Because this rule is based on officer safety and the threat posed by a firearm,
officers need not determine whether the driver or any other occupant is legally
permitted to carry. Id. Accordingly, Hicks is not implicated with respect to
the seizure because the authority to detain is supplied by a valid basis to
effectuate a traffic stop, and the authority to seize the firearm is due to officer
safety. Id. at 548.
Finally, because the foregoing analysis addresses only the officer’s
authority to seize the firearm, the remaining question was whether the firearm
had to be suppressed. The Hawkins-Davenport Court stated that “this case
does not involve an allegation that the police impermissibly extended the
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traffic stop to ascertain the status of Hawkins-Davenport’s concealed carry
licensure, such as in Malloy[.]” Id. at 549. Alternatively, we concluded that
Malloy would not support a request for relief under Rodriguez because “[t]he
events in this traffic stop happened in quick succession.” Id. After seizing
the firearm, the officer “asked Hawkins-Davenport within seconds if he had a
permit to carry the gun.” Id. Hawkins-Davenport immediately replied that
he did not and was arrested. “Unlike the officer in Malloy, Officer Torres did
not initiate a separate and prolonged investigation into whether Hawkins-
Davenport possessed documents permitting him to carry a firearm.” Id.
Appellant concedes that the officers were authorized to seize the firearm
because of officer safety concerns. Appellant’s Reply Brief at 10. However,
Appellant argues that the officers “were not permitted … to initiate a secondary
investigation into [Appellant]’s authority to carry a firearm, which bore no
relevance to the reason for the traffic stop, his safe operation of a motor
vehicle, or officer safety.” Id. at 11-12. Therefore, Appellant submits that
the officers were entitled to seize the firearm but not permitted to ask
Appellant any follow-up questions absent additional behaviors or facts
suggesting criminality.
Hawkins-Davenport indicates that a question regarding the driver’s
ability to legally carry a firearm is a fair topic, provided the inquiry does not
extend the traffic stop beyond the time needed to complete its mission. See
Hawkins-Davenport, 319 A.3d at 549 (noting that the officer “saw the
firearm out in the open, removed the firearm through the open passenger side
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window, and asked Hawkins-Davenport within seconds if he had a permit to
carry the gun”). But see Commonwealth v. Froehlich, No. 606 WDA 2022,
2023 WL 8828685 at *11 (Pa. Super. filed December 11, 2023) (non-
precedential decision) (rejecting argument that “as long a[s] the traffic stop
is brief, looking into a passenger’s firearm status is a ‘mission related’ inquiry
that requires no independent justification”). Indeed, Malloy suggests the
opposite result, as the Court held that questions about Malloy’s authority to
carry was beyond the scope of the mission.
Here, neither the trial court nor the Commonwealth cite legal authority which equates an investigation of a passenger’s documented authority to carry a firearm to the incidental inquiries permitted during a lawful traffic stop under Rodriguez and which promote safe and financially responsible operation of motor vehicles. More tellingly, neither the trial court nor the Commonwealth offer any explanation as to how or why a passenger’s firearms licensure status relates to these incidental inquiries or, more broadly, to the safe and financially responsible operation of a motor vehicle in general.
Malloy, 257 A.3d at 152.
We decline to address whether the distinction between passenger and
driver warrants a different result, as Malloy does not hold that any type of
police questioning about ownership of a firearm is completely forbidden. It
was clear that Malloy exclusively possessed the firearm, as it was on his hip.
Id. Similarly, in Froehlich, we concluded that for officer safety reasons
“police may ask for a passenger’s identification and, upon discovering the
presence of a firearm, may request the owner to identify himself or herself as
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a function of preserving on-scene officer safety without independent
constitutional justification.” Froehlich, 2023 WL 8828685 at *10.
In contrast to Malloy, Appellant did not physically possess the firearm,
and nobody claimed ownership as in Froehlich. Instead, when Officer
DuBrosky asked Appellant if there was anything in the car, he replied, “No.”
At that point, the officers were faced with a firearm that was recovered from
the passenger seat, and neither Appellant nor the backseat occupants claimed
ownership. Combined with the fact that Officer DuBrosky testified that he saw
Appellant make furtive movements towards the passenger seat, we conclude
that the officers possessed reasonable suspicion at that juncture to investigate
whether Appellant could legally carry the firearm. Accordingly, the trial court
did not err in denying suppression.
Appellant’s third and final issue asserts that the evidence was not
sufficient to convict him of carrying a firearm in his vehicle without a license.
The statute provides that “[A]ny person who carries a firearm in any vehicle
… without a valid and lawfully issued license under this chapter commits a
felony of the third degree.” 18 Pa.C.S. § 6106(a)(1).
Our standard of review is well-settled.
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none
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of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth’s burden may be met by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact[-]finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2017) (quoting
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa. Super. 2016)).
Caselaw requires the Commonwealth to establish, beyond a reasonable
doubt, that Appellant possessed the firearm. As Appellant did not physically
possess the firearm, the Commonwealth relied on the theory of constructive
possession. See Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super.
2011) (“Illegal possession of a firearm may be shown by constructive
possession.”). Our Supreme Court has summarized the doctrine as follows:
Where possession is an element of the offense, the concept of constructive possession is a legal fiction used to prove the element although the individual was not in physical possession of the prohibited item. The evidence must show a nexus between the accused and the item sufficient to infer that the accused had the power and intent to exercise dominion and control over it.
Dominion and control means the defendant had the ability to reduce the item to actual possession immediately, or was otherwise able to govern its use or disposition as if in physical possession. Mere presence or proximity to the contraband is not enough. Constructive possession can be established by inferences derived from the totality of the circumstances.
Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citations
omitted; paragraph break added).
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Appellant submits that this is a case of mere presence. Appellant’s Brief
at 31. He avers that the only concrete movement linking him to the firearm
was the officer’s report of furtive movements, which “is not sufficient to
establish constructive possession.” Id. at 32 (quoting Commonwealth v.
Boatwright, 453 A.2d 1058, 1059 (Pa. Super. 1982)). Additionally,
Appellant cites the three males in the vehicle’s backseat, arguing that those
males had equal access to the firearm. Id. at 31.
We disagree with the conclusion that the individuals in the backseat had
equal or greater access to the firearm. Appellant cites Commonwealth v.
Heidler, 741 A.2d 213 (Pa. Super. 1999) (en banc) and Commonwealth v.
Wisor, 353 A.2d 817 (Pa. 1976), in support. Both cases are readily
distinguishable.
In Heidler, John Heidler and his girlfriend left their home to pick up
Heidler’s son at his middle school. Heidler, 741 A.2d at 214. During the
drive, Heidler handed his girlfriend his gun, who placed it in her purse. Id.
Heidler then parked his vehicle and entered the school. Id. However,
unbeknownst to Heidler, his estranged wife had obtained a temporary PFA
order and informed the school of its existence. Id. at 215. School officials
summoned police, who then served the PFA on Heidler and spoke to him and
his girlfriend. Id. Heidler’s girlfriend told police about the gun and Heidler
was charged with possessing a gun on school property. Id. In reversing his
conviction, we concluded that Heidler did not have equal access to the purse.
Id. at 216. “[T]he only person that could be deemed to have access to the
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purse was its owner—the passenger in [Heidler’s] vehicle.” Id. Therefore,
Heidler “cannot be deemed to have the necessary power to control or intent
to control the gun.” Id.
In Wisor, a police officer saw a vehicle parked in a shopping center.
Wisor, 353 A.2d at 817. The vehicle appeared unoccupied and when the
officer approached, a “young woman ... sat up.” Id. The officer departed but
continued to watch the vehicle from a distance with binoculars. Id. Over a
period of ten minutes, the officer saw people walk over to the vehicle. Id. He
then pulled up behind the car and detained Wisor, who was sitting behind the
wheel. Id. at 818. Five other passengers were in the car. Id. The officer
asked everyone to exit. Id. The front-right passenger pushed the seat
forward to allow the backseat occupants to exit, and the officer saw a
marijuana pipe “lying in the space beneath the back of the right-front
passenger’s seat. The pipe was made visible only after the front-right
passenger’s seat was pulled forward.” Id.
Wisor was charged with possession of the pipe and our Supreme Court
discharged his conviction, finding the Commonwealth failed to establish
possession. “The facts disclose that the other occupants of [Wisor’s] car had
ample opportunities to place the pipe in the crevice behind the front-right
passenger’s seat. Because of the presence of these other persons in the car,
[Wisor] did not have exclusive control of the area where the pipe was found.”
Id. It was “possible that the pipe was placed there by one of the other persons
before [Wisor] entered the car or as the police were approaching.” Id. at 819.
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Additionally, “the location of the drugs was such that they were easily
accessible to others, such as the female who was alone in the car for a period
of time prior to [Wisor]’s presence in the car, or the other occupants of the
car.” Id.
Both cases are distinguishable. Heidler involved a case where another
person had superior, if not exclusive, access to the weapon. Wisor involved
contraband that was not visible until the front passenger moved the seat
forward to allow the backseat occupants out. While the case is similar in that
it also involves the presence of multiple people in the backseat, the firearm in
Appellant’s car was not located under a seat but on the empty front passenger
seat next to Appellant, the driver. See N.T., 10/24/24, at 7-8 (reflecting that
Officer DuBrosky testified that the gun was on the front passenger seat “sitting
right next to [Appellant]”).
Indeed, we conclude that the totality of the circumstances warranted
the inference that Appellant had superior access to the firearm as compared
to the passengers. Our decision in Commonwealth v. Parrish, 191 A.3d 31,
32 (Pa. Super. 2018), illustrates the point. There, a police officer conducted
a traffic stop and spoke to the driver; officers “observed [the driver] straddling
the center console between the two front seats and the grip of a silver
handgun protruding from under the front passenger seat. The officers further
observed [Parrish] seated behind the driver’s seat with his hands on the
headrest of the driver’s seat.” Id. at 33. Officers seized the silver handgun
and a search revealed additional contraband in a black satchel on the
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passenger-side floor. Id. at 37. We held that the evidence was insufficient
to establish constructive possession of any of the items. With respect to the
firearm located under the seat, we stated: “[W]e fail to see how the jury could
reasonably conclude that [Parrish], while sitting in the back seat of the vehicle,
had dominion and control over the gun under the passenger-side front seat[.]”
Id. at 38.
Similarly, it would be difficult to conclude that the backseat occupants
had dominion and control over the gun recovered from the front passenger
seat based strictly on their presence and proximity. In Parrish, the
Commonwealth argued that the officer observed the vehicle “rocking back and
forth” after the driver pulled over, and suggested that Parrish “jettison[ed]
himself away from the contraband located in the front seat[.]” Id. at 38. We
deemed this too speculative, as it was “equally reasonable to infer that the
rocking was caused by” the driver, who was straddling the console. Id. In
this case, there is no indication of furtive movements by anyone other than
Appellant. This, combined with Appellant’s superior physical access to the
firearm, permitted the trial court to “reasonably infer that the defendant
exercised dominion and control over the contraband at issue.” Id. at 37. See
also Commonwealth v. Carter, 450 A.2d 142, 144 (Pa. Super. 1982)
(holding that evidence sufficed to establish driver constructively possessed
the firearm located on the floor of passenger seat; “The evidence ... also
established that none of the other occupants of the vehicle had had an
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opportunity in the period between the stop and the discovery of the gun to
place the gun on the floor.”).
While it is possible one of the backseat passengers placed the firearm
on the seat, “the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Commonwealth v.
Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (quoting Commonwealth v.
Gooding, 818 A.2d 546, 548 (Pa. Super. 2003)). Furthermore, the
implausibility of Appellant’s statement that nothing was in the vehicle is
additional circumstantial evidence. Thus, we conclude that the evidence
sufficed to enable the trial court to conclude that Appellant constructively
possessed the firearm.
Judgment of sentence affirmed.
DATE: 3/3/2026
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