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March 3, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Kirkland, K.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1493 WDA 2024
• Precedential Status: Non-Precedential

• Judges: Bender

• Opinion

• Authorities

• Cited By

• Summaries

• Similar Cases

• PDF

Combined Opinion

                        by [John T. Bender](https://www.courtlistener.com/person/8224/john-t-bender/)

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

---

---

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.

-2-
J-A29036-25

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.

-3-
J-A29036-25

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?

-4-
J-A29036-25

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).

-5-
J-A29036-25

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

-6-
J-A29036-25

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.

-7-
J-A29036-25

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

-8-
J-A29036-25

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

-9-
J-A29036-25

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

1. 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.

• 10 - J-A29036-25

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

• 11 - J-A29036-25

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

• 12 - J-A29036-25

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

• 13 - J-A29036-25

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

• 14 - J-A29036-25

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).

• 15 - J-A29036-25

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

• 16 - J-A29036-25

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.

• 17 - J-A29036-25

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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