J-S43017-19
                                   2020 PA Super 9
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY BOWENS                               :
                                               :
                       Appellant               :   No. 341 MDA 2018

        Appeal from the Judgment of Sentence Entered October 23, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007390-2016


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                                 FILED JANUARY 17, 2020

       Appellant, Terry Bowens, appeals from the Judgment of Sentence of

15¾ to 31½ years’ incarceration entered after a jury found him guilty of two

counts of Possession With Intent to Deliver (“PWID”), and one count each of

Conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried

without a License, and Possession of Drug Paraphernalia.1 He challenges, inter

alia, the denial of his suppression motion and the sufficiency of the evidence

supporting the possession element of his convictions. After careful review, we

conclude the trial court erred in failing to suppress the evidence obtained from

Appellant’s cell phone after the search warrant had expired. In addition, we

conclude as a matter of law that the Commonwealth failed to prove that

Appellant constructively possessed the items found in the locked glove box.
____________________________________________

135 P.S. § 780-113(a)(16) and (30); 18 Pa.C.S. § 903; 18 Pa.C.S. § 3925(a);
18 Pa.C.S. § 6106(a)(1), and 35 P.S. § 780-113 (a)(32), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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We, thus, reverse the denial of the motion to suppress and convictions of

PWID, Receiving Stolen Property, Firearms Not to be Carried without License,

and Possession Drug Paraphernalia.

      We glean the following relevant facts from the certified record.       On

October 12, 2016, Pennsylvania State Police Trooper Wesley Johnson

observed a vehicle abruptly change lanes from the passing lane to the right

lane, nearly hitting another vehicle. After activating the emergency lights on

his vehicle, Trooper Johnson observed Maxi Echevarria, the driver of the

vehicle, reaching over towards the glove box as he pulled the car onto the

shoulder of the road. Appellant was sitting in the front passenger seat. While

speaking with the men in the car, Trooper Johnson noticed that they were

acting nervously. Mr. Echevarria informed the officer that the car belonged to

his girlfriend in New Jersey. He also stated that he and Appellant were

travelling from York City to Lancaster, and then on to Chester or Philadelphia.

      While Trooper Johnson was speaking to Appellant and Mr. Echevarria on

the side of the road, another officer learned of arrest warrants outstanding for

both men. Trooper Johnson then took the men into custody and took

possession of their cell phones.   Trooper Johnson set Appellant’s phone to

airplane mode and placed it inside an aluminum foil-lined pouch for

safekeeping.

      Trooper Johnson then impounded the vehicle and conducted an

inventory search. The glove box was locked; both Appellant and Mr.

Echevarria denied having the key to open the glove box and denied knowing

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its contents.2 Trooper Johnson contacted Mr. Echevarria’s girlfriend, located in

New Jersey, who gave him permission to search the glove box, stating that

Mr. Echevarria had the key.

       Trooper Johnson nonetheless obtained a search warrant for the glove

box on October 13, 2016, and discovered, inter alia, heroin, drug

paraphernalia, and two firearms. Consequently, on October 14, 2016, Trooper

Johnson obtained a search warrant for the cell phones and provided it that

day to Detective Mark Baker of the Northern York County Regional Police

Department, a forensic expert in the field of cell phone data extraction. The

search warrant expired on October 16, 2016, at 10:45 AM.

       On October 20, 2016, Detective Baker notified Trooper Johnson that he

had completed the cell phone extraction, which revealed text messages

between Mr. Echevarria and Appellant using language common to the illicit

drug trade. Appellant’s phone also contained photographs of cash, and of a

handgun similar to that found in the glove box.

       The Commonwealth charged Appellant with the above offenses.

Appellant and co-defendant Mr. Echevarria filed a pre-trial Omnibus Motion in

which Appellant sought, inter alia, suppression of the evidence seized from his



____________________________________________

2 Trooper Johnson particularly noticed that Mr. Echevarria became very
nervous when the glove box came up in their conversation. See N.T. Trial,
4/6/17, at 15. Police officers later discovered the key to the glove box
“secreted in” Mr. Echevarria’s sweatshirt. N.T. Suppression, 2/28/17, at 14-
15, 81.

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cell phone because the search warrant expired before the police searched his

phone.

       After the hearing, the suppression court denied the Motion in part and

granted it in part. The court found that Detective Baker had conducted the

cell phone search on October 20, 2016, four days after the warrant had

expired. However, the court concluded that because the phone had been in

police custody since its seizure on October 12, 2016, and frozen in airplane

mode, there were no “staleness concerns that would be present in other

factual scenarios where the probable cause determination would have

expired.” Suppression Ct. Op., dated 6/6/17, at 10. The court also found that

the delay in searching the phone “was a product[] of coordination delays

between the police possessing the software and [the] expertise to do the job.”

Id. at 11. The court directed, however, that any information that was sent to

the phone after 10:45 AM on October 16, 2016, i.e., after the warrant expired,

would be inadmissible at trial. Id.

       Appellant’s trial commenced.3 The Commonwealth presented testimony

from Trooper Johnson, Detective Baker, and Detective Craig Fenstermacher,

an investigator with the York County District Attorney’s Office and an expert

in the field of drug interdiction. Trooper Johnson testified regarding the

circumstances leading up to and including the traffic stop. The Commonwealth

____________________________________________

3Mr. Echevarria entered a guilty plea immediately before the start of the trial.
He did not testify at Appellant’s trial.


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introduced the cell phone extraction report through Detective Baker’s

testimony regarding the method of extraction utilized. The report contained a

packet of printouts showing, inter alia, approximately 4000 images extracted

from Appellant’s cell phone, including text messages and photos.

       Following    Officer     Baker’s   testimony,   the   court    ruled   on   the

authentication and admissibility of 44 text messages. Detective Fenstermaker

then testified regarding the admitted messages and the drug language used

therein. Trooper Johnson testified regarding the synchronicity of the text

messages between Mr. Echevarria’s and Appellant’s cellphones. N.T. Trial at

234-35.

       The jury found Appellant guilty of all of the above charges. The court

ordered a pre-sentence report and subsequently sentenced Appellant to an

aggregate term of 15 years 9 months’ to 31 years 6 months’ incarceration.

       Appellant    filed   a   timely    Post-Sentence   Motion     challenging   the

discretionary aspects of his sentence, which the trial court denied. He then

filed this timely appeal.4

       In his Brief, Appellant raises the following issues for our review:

       1. Did the trial court err in failing to suppress the fruits of a search
       of a cell phone backed with a warrant that had expired by the time
       the search was executed?



____________________________________________

4  Appellant submitted a timely Pa.R.A.P. 1925(b) Statement; the trial court
filed a Rule 1925(a) Opinion.


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      2. Did the court err in finding incriminating text messages had
      been authenticated for use against [Appellant] where the
      messages did not reveal their author and evidence showed others
      used the phone in question?

      3. Was there insufficient evidence that [Appellant] possessed the
      guns, drugs, and paraphernalia found in the locked glove
      compartment of the car he was riding in where all indicia of ability
      and intent to exercise dominion and control over these items
      related to the driver?

      4. Was there insufficient evidence that [Appellant] knew or
      believed the Ruger handgun was probably stolen where there was
      no evidence of when, where, or how the gun was stolen and its
      serial number was intact?

      5. Did the sentencing court abuse its discretion in imposing three
      times the recommended incarceration, including multiple
      consecutive terms, based in part on convictions that were already
      included in [Appellant’s] prior record score and the unsupported
      notion that [Appellant] was the leader in a criminal enterprise?

Appellant’s Brief at 5.

Warrantless Search

      Appellant first challenges the denial of his Motion to Suppress the

information obtained from his cell phone, contending that because the search

warrant expired four days before Officer Baker extracted the data on October

20, 2016, the search was “functionally warrantless” and the court should have

suppressed the evidence. See Appellant’s Brief at 28-30. We agree.

      In reviewing the trial court’s decision to deny a motion to suppress, we

must determine “whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.” Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super.

2016). See also Commonwealth v. Batista, __ A.3d ___, ___ , 2019 WL

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J-S43017-19



4727297 at *6 (Pa. Super. filed Sept. 27, 2019) (observing that “our standard

of review is highly deferential with respect to the suppression court’s factual

findings and credibility determinations”) (citation omitted)). The conclusions

of law of the court below are subject to plenary review on appeal.

Commonwealth v. Hopkins, 164 A.3d 1133, 1136 (Pa. 2017).

      Further,   “[b]ecause   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.” Freeman, supra at 34. We

may not consider evidence outside the suppression hearing record. In Re

L.J., 79 A.3d 1073, 1085 (Pa. 2013).

      Our rules of criminal procedure provide numerous rules pertaining to

search warrants to protect our constitutional right to be free from

unreasonable government intrusions into our private affairs. See Pa.R.Crim.P.

200-212; U.S. Const. amend. IV; PA Const. Art.1 §8. As the Pennsylvania

Supreme Court recently noted in Commonwealth v. Fulton, 179 A.3d 475

(Pa. 2018), “[s]tate rules often implicate constitutional values, and the

violation of a state rule may rise to the level of a federal constitutional

violation,” and “a more relaxed harmless error standard for errors perceived

as violations of state rules, but which might also be violations of the federal

Constitution, would leave constitutional values inadequately protected.” Id.

at 493 (quoting Commonwealth v. Story, 383 A.2d 155, 163 (Pa. 1978)).




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      Relevant to this appeal, Pa.R.Crim.P. 205(A)(4) provides that the

authority issuing the search warrant must direct that the search be conducted

“within a specified period of time, not to exceed 2 days from the time of

issuance.” Our judicially created rules do not provide any exceptions to the

requirement that the search be conducted within the mandated period of time

contained within a search warrant. Thus, because Rule 205 specifically

“implicate[s] constitutional values,” the failure to adhere to that time-

limitation in conducting the search “rises to the level of a federal constitutional

violation.” Fulton, supra at 493.

      In Fulton, the Court held that accessing any information from a cell

phone without a warrant violates the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at

479, 489. Relying on the United States Supreme Court's decision in Riley v.

California and United States v. Wurie, 573 U.S. 373 (2014), our Supreme

Court observed, “that in the absence of an applicable exception, any search

of a cell phone requires a warrant. This is because, like one’s home, an

individual's expectation of privacy is in the cell phone itself, not in each and

every piece of information stored therein.” Fulton, supra at 487 (emphasis

in original).

      “[P]robable cause alone will not support a warrantless search.”

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013). Thus,

“absent consent or exigent circumstances,” police officers may not conduct a

search without a warrant “even where probable cause exists.” Id. (citation

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J-S43017-19



omitted). “Evidence of any kind obtained by police through an unlawful search

may not be used in any respect, including as evidence at trial against the

subject of the search.” Fulton, supra at 489 (citing Wong Sun v. United

States, 371 U.S. 471, 484-85 (1963)).

      Here, the search warrant expired on October 16, 2016, at 10:45 AM.

The trial court found, as a matter of fact, that the search occurred on October

20, 2016, four days after the warrant had expired. Accordingly, Detective

Baker conducted the cell phone search without a valid warrant.

      Where a search occurs without a warrant, the evidence obtained

therefrom must be excluded, unless the evidence was obtained under one of

the exceptions to warrant requirements. See, e.g., Commonwealth v.

Roland, 637 A.2d 269 (Pa. 1994) (exigent circumstances: where the loss of

evidence before warrant can be obtained is likely); Commonwealth v. Gary,

91 A.3d 102 (Pa. 2014) (adopting the federal rule where exigent circumstance

exists based solely on the mobility of the vehicle); Commonwealth v.

McCree, 924 A.2d 621 (Pa. 2007) (plain view exception);             See also

Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991) (holding that

the good-faith exception to the exclusionary rule does not exist in

Pennsylvania).

      In the instant case, there are no applicable exceptions to the

exclusionary rule. The cell phone data was not in plain view, and because the

cell phone was in PSP custody and set in airplane mode, exigency and mobility




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of the evidence were not a concern. The trial court, thus, correctly determined

that the police officer improperly conducted the search without a warrant.

      Notwithstanding that determination, the suppression court concluded

that the error was harmless because there were no staleness concerns with

respect to the probable cause determination. See Tr. Ct. Order and Supporting

Memorandum, 6/6/17 at 9; Rule 1925(a) Opinion, 3/27/19, at 11-12.

However, as noted above, “probable cause alone will not support a warrantless

search.” Johnson, 68 A.3d at 935.

      Moreover, “an error cannot be held harmless unless the appellate court

determines that the error could not have contributed to the verdict. Whenever

there is a ‘reasonable possibility’ that an error ‘might have contributed to the

conviction,’ the error is not harmless.” Fulton, supra at 493 (citations

omitted). In considering whether an error is harmless, the Fulton court

emphasized the following factors courts must consider:

      Harmless error exists if the state proves either: (1) the error did
      not prejudice the defendant or the prejudice was de minimis; or
      (2) the erroneously admitted evidence was merely cumulative of
      other untainted evidence which was substantially similar to the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Id. at 493 (emphasis in original; citations omitted) (relying on Story, 383

A.2d at 164-167).

      In the instant case, the suppression court did not consider the above

analysis in reaching its conclusion that the error was harmless. The evidence


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from the cell phone extraction was the only evidence the Commonwealth

presented to support its conspiracy charge. Accordingly, applying the first

factor of the harmless error analysis to the facts of this case, there is no doubt

that the error of admitting the evidence prejudiced Appellant and the prejudice

was not de minimus.

       The Commonwealth raises, for the first time in its Brief, that the error

was a mere “technical violation of the rules of criminal procedure,” relying on

a factually distinguishable case.              Commonwealth’s Brief at 25 (citing

Commonwealth v. Knoble, 188 A.3d 1189 (Pa. Super. 2018), appeal

denied, 198 A.3d 332 (Pa. 2018)).5 We disagree with the Commonwealth’s

characterization: the violation here was the failure to follow a court’s order to

conduct the search by October 16, 2016, at 10:45 AM. The failure to abide by

a search warrant’s requirements—requirements that are judicially-mandated


____________________________________________

5 In Commonwealth v. Knoble, 188 A.3d 1199 (Pa. Super. 2018), appeal
denied, 198 A.3d 332 (Pa. 2018), police officers conducted their extraction of
cell phone data pursuant to a valid warrant within the time indicated on the
warrant. Nine months later, the appellant requested another copy of the data,
even though the data had already been provided to him. Due to the loss of
the stored data from the forensic police officer’s hard drive, the officer
conducted another extraction in order to fulfill the appellant’s request.
Because the extraction software had been automatically updated during the
nine-month period, the second extraction recovered incriminating video that
had not been recovered in the first extraction. The appellant unsuccessfully
sought to exclude that video, raising a claim of unreasonable governmental
intrusion. Because the second extraction occurred at the behest of the
appellant, Knoble is not dispositive here.




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so as to ensure protection of constitutional rights—are not “technical violations

of the rules of criminal procedure.”

       Accordingly, because the police officers here conducted a warrantless

search of the cell phone, and the facts present no exception to the

exclusionary rule, we conclude the court erred in admitting the evidence

extracted from the cell phone.6

Constructive Possession

       Appellant next asserts that the Commonwealth failed to provide

sufficient evidence of possession to support his convictions of the drug and

firearms offenses. He contends that, because police officers recovered no

drugs, drug paraphernalia, or firearms from his person, and he did not have

access to the contents of the locked glove box because he did not have the

key, the Commonwealth failed to prove the “essential element of possession”

and, therefore, each of his convictions in which possession is an element

should be vacated. Appellant’s Br. at 43. Based on our review and application

of precedential case law, we agree.

       Evidentiary sufficiency is a question of law; thus, our standard of review

is de novo, and our scope of review is plenary. Commonwealth v. Diamond,

83 A.3d 119, 126 (Pa. 2013). In determining whether the evidence was

sufficient to support a verdict, we view the evidence and all reasonable

____________________________________________

6Because the trial court erred in admitting the evidence extracted from the
cell phone, we need not review Appellant’s second issue challenging the trial
court’s authentication of the admitted text messages and photos.

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inferences to be drawn therefrom in the light most favorable to the verdict

winner, the Commonwealth herein.       Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc). “Evidence will be deemed sufficient to

support the verdict when it establishes each material element of the crime

charged and the commission thereof by the accused, beyond a reasonable

doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(citations and internal quotations omitted).

      Appellant challenges the possession element of each of the crimes

charged. To convict a person of PWID, the Commonwealth must prove beyond

a reasonable doubt that the person possessed a controlled substance with the

intent to deliver it and without legal authorization to do so. 35 P.S. § 780-

113(a)(30).   See Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.

Super. 2005). A person will be guilty of the offense of Firearms Not to be

Carried Without a License if the individual carries a firearm “concealed on or

about his person” without a valid license. 18 Pa.C.S. § 6106(a). With respect

to the drug paraphernalia conviction, 35 P.S. § 780-113(32) prohibits one

from, inter alia, possessing drug paraphernalia for the purpose of “ packing, .

. .   storing, containing, concealing . . . a controlled substance.” Drug

paraphernalia includes bags used to package and store illegal drugs.

Commonwealth v. Torres, 617 A.2d 812, 815-16 (Pa. Super. 1992).

      It is well-settled that when an individual is found guilty of possessing

contraband which was not found on his person, as in the case now before us,

the Commonwealth is required to prove that he had constructive possession

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or joint constructive possession of the contraband. Bricker, 882 A.2d at 1014.

Constructive possession is a legal fiction; it is an inference from a set of facts

that the defendant more likely than not had control of contraband that was

not found on his person. Commonwealth v. Mudrick, 507 A.2d 1212, 1213

(Pa. 1986). The Pennsylvania Supreme Court defines constructive possession

as “conscious dominion,” which is “the power to control the [contraband] and

the intent to exercise that control.” Commonwealth v. Johnson, 26 A.3d

1078, 1093 (Pa. 2011) (citation and quotation omitted).

      However, a person’s presence in a place where the drugs are found,

standing alone, will not establish constructive possession. Commonwealth

v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001). See Commonwealth

v. Valette, 613 A.2d 548, 550 (Pa. 1992) (noting that “[i]t is well settled that

facts giving rise to mere ‘association,’ ‘suspicion’ or ‘conjecture’ will not make

out   a   case   of   constructive   possession.”   (citations   omitted)).   The

Commonwealth must prove some additional factor linking the defendant to

the drugs, such as finding the contraband in plain view, finding the contraband

within the defendant’s personal effects or in a place where only the defendant

had access, and observing the defendant acting suspiciously before or during

the arrest. See, e.g., Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.

Super. 2003) (concluding that the appellant had constructive possession of

drugs which were found in plain view in the back seat of a vehicle);

Thompson, supra at 1199-1200 (concluding that the appellant’s furtive

movements, along with his proximity to the cocaine and his admission that

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other drugs could be found in the location where the cocaine was found,

evidenced joint constructive possession); Commonwealth v. Micking, 17

A.3d 924, 926 (Pa. Super. 2011) (concluding that testimony regarding a

defendant’s display of extreme nervousness is admissible as evidence of

consciousness of guilt in a constructive possession determination).

      This Court has reversed convictions after concluding, as a matter of law,

that the Commonwealth did not present sufficient evidence to prove

constructive possession. For instance, in Commonwealth v. Boatwright,

453 A.2d 1058 (Pa. Super. 1982), police responded to a tip about three

suspicious men in an automobile. When they arrived on the scene, they

observed the defendant in the front passenger seat, one individual in the

driver's seat, and one in the back seat. Police observed the defendant's body

moving to the left-rear of the vehicle, where soon thereafter, they discovered

a firearm. The defendant was convicted of a firearm offense based on his

constructive possession of that firearm. This Court reversed, reasoning:

      Because the firearm was not found on [Boatwright's] person, he
      could properly be convicted only if the Commonwealth proved
      joint constructive possession with the other occupants of the
      vehicle. To do this, the Commonwealth must present evidence to
      show that [Boatwright] had both the power to control the firearm
      and the intent to exercise that control. Mere presence at the scene
      where the gun was found is not sufficient. The only evidence other
      than mere presence was [an officer's] testimony that [Boatwright]
      made a movement toward the left rear of the vehicle. This
      evidence cannot provide proof beyond a reasonable doubt that
      [Boatwright constructively] possessed the firearm in question.



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Id. at 1059 (citations omitted).

       In Commonwealth v. Davis, 280 A.2d 119 (Pa. 1971), our Supreme

Court concluded that the defendant was a “mere visitor” to the building in

which stolen dresses were seized.              Id. at 121.   The Court found that the

Commonwealth failed to present sufficient evidence that the appellant had

ever “received” the stolen goods because his paramour, who was not a co-

defendant, had the only key to the locked cupboard where the stolen goods

were discovered. The Commonwealth had presented no evidence that the

appellant had access to the key or control over the stolen goods. Id.7

       In the case now before us, the trial court addressed Appellant’s

constructive possession challenge by explaining, inter alia, that Appellant had

exhibited an “unusual level of nervousness” during the traffic stop, and “the

items were accessible to Appellant by getting the key from his alleged co-

conspirator, Mr. Echevarria, who was sitting next to him in the car.” Trial Ct.

Op., 3/27/19, at 13-14.

       As a matter of law, the trial court’s speculation and conjecture that

Appellant could have asked Mr. Echevarria for the key is not proof that


____________________________________________

7 Cf. Commonwealth v. Peters, 218 A.3d 1206 (Pa. 2019) (discussing
constructive possession generally and rejecting constructive possession as a
theory upon which to find criminal liability under 18 Pa.C.S. § 6106, carrying
a concealed firearm on one’s person, where only the unidentified assailant,
and not the defendant, carried and used a gun during an attempted murder
and robbery).


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Appellant had dominion and control over the contraband. Further, we do not

agree that the Commonwealth proved that Appellant had constructive

possession of the contraband at the time of the traffic stop. The

Commonwealth was required to provide evidence that Appellant had dominion

and control over the contraband in the locked glove box. However, as Trooper

Johnson testified, the key to the locked glove box was “secreted” in Mr.

Echevarria’s sweatshirt. N.T. Suppression at 14-15, 81. The Commonwealth

did not provide any evidence that Appellant had access to that key. Moreover,

the Commonwealth presented no evidence to demonstrate that Appellant had

control over that contraband. Rather, the Commonwealth proved only

Appellant’s mere presence in the vehicle at the time of the traffic stop.

        Accordingly, we reverse Appellant’s convictions for PWID, Possession of

Drug Paraphernalia, Receiving Stolen Property, and Possession of Firearms,

and direct the trial court to enter a Judgment of Acquittal on those offenses.8

        Judgment of Sentence vacated. Denial of Suppression Motion Reversed.

Case remanded for a new trial on the Conspiracy offense. Convictions for

PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and

Possession of Firearms reversed and Judgment of Acquittal on those offenses

to be entered by trial court. Jurisdiction relinquished.

        President Judge Emeritus Gantman joins the opinion.



____________________________________________

8   In light of our disposition, we need not address Appellant’s remaining issues.

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     President Judge Emeritus Stevens files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 1/17/2020




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