J-A25007-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ANDRAY COTTLE, :

:

Appellant : No. 2225 EDA 2013

Appeal from the Judgment of Sentence March 20, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0008226-2012

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 10, 2014

Andray Cottle (“Cottle”) appeals from the judgment of sentence 

entered following his convictions of prohibited possession of a firearm, 

carrying a firearm without a license and possession of a controlled 

substance.1 We affirm.

The trial court summarized the facts underlying Cottle’s convictions as 

follows: 

Police Officer Kevin McGrorty and his partner, Officer 

Fenny, were on duty in an unmarked car in the area 

of the 600 block of Garland Street in Philadelphia on 

June 20, 2012 around 9:25 p.m. Notes of Testimony 

("NT"), 11/21/13 at 6-8. This block is two lanes with 

cars going both ways down the street. Id. at 9. The 

officers were traveling eastbound when they 

observed a black Monte Carlo, being driven by 

[Cottle], widely pull out of a legal parking spot on 

the side of the road without using a turn signal. Id.

 

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1); 35 P.S. § 780-113(a)(16). 
J-A25007-14

- 2 -

at 7. [Cottle] pulled out so widely that ‘he went into 

oncoming traffic,’ causing ‘a hazardous condition for 

other vehicles.’ Id. at 8. This forced an oncoming 

vehicle to swerve out of the way, to avoid being hit. 

Id. at 9. In fact, [Cottle] cut off the police cruiser, 

causing the officers to slow down to avoid an 

accident. Id.

The officers activated their lights and sirens and 

pulled [Cottle] over. [Id.] at 9. There were four 

passengers in total in the vehicle:[Cottle], a front 

seat passenger, and two passengers in the rear. Id. 

McGrorty approached the driver side while his 

partner approached the passenger side. Id. at 9. The 

windows to the Monte Carlo were heavily tinted so 

McGrorty ordered the windows down. Id. As the 

windows went down, McGrorty smelled a fresh, 

strong odor of burnt marijuana. Id. at 10. The 

officer then asked [Cottle] for his driver's license, 

registration and insurance. Id. [Cottle] produced a 

valid state ID to the officer, along with his 

registration. Id. at 10, 15. The officer again 

requested the insurance. Id. [Cottle] then 

proceeded to reach towards the glove box. Id. He 

touched the glove box with his fingers, but did not 

open it. Id. He reached his hand back, looked over 

to McGrorty, and stated that he did not have 

insurance. Id. at 10, 28. [Cottle] ‘fumbled over his 

words. He didn't know what to say at that point.’ Id.

at 28. This prompted Fenny, who was standing at 

the passenger side of the vehicle, to notify McGrorty 

that when the officers were first approaching the 

vehicle he had observed the passenger shut the 

glove box and reach under the passenger seat. Id.

at 10-11.

McGrorty had been on the force for four years. Id. 

at 14. He had been assigned to the second district, 

where this incident occurred, for over three years. 

Id. During his tenure with the Philadelphia Police 

Department, he had made fifteen to twenty arrests 

for gun violations. Id. About half of those arrests 

were from vehicle stops where firearms were 

recovered. Id. The officer described the area in and 
J-A25007-14

- 3 -

around the 700 block of Garland Street as a known 

‘hot spot’ with numerous shootings. Id.

For their safety, the officers then removed both 

[Cottle] and the front seat passenger. Id. at 11. 

Next McGrorty went over to the passenger side of 

the vehicle and observed a burnt marijuana cigar

under the seat. Id. at 12. The officer then decided 

to remove the two backseat passengers. Id. at 13. 

The Monte Carlo is a two-door sedan. Id. 11. 

Therefore, the these passengers had to exit the 

vehicle through the front. Id. Consequently, 

McGrorty did a cursory safety check of the front of 

the vehicle. Id. at 13. Upon opening the glove box, 

he found a .9 millimeter Ruger loaded with 

seventeen rounds and a second magazine loaded 

with eight live rounds . Id. The parties stipulated 

that [Cottle] was ineligible to possess a handgun on 

the day of the incident. Id. at 55-[5]6. After the 

gun was recovered, [Cottle] was arrested. Id. at 16. 

The officers also recovered $237 U.S. currency from 

[Cottle]—eleven $20 bills, one $5 bill, and twelve $1 

bills. Id. at 49. 

McGrorty then contacted Sergeant Barclay, who 

arrived on location and requested a K-9 unit. Id. at 

49. The K-9 officer and dog arrived, and the dog 

began barking, scratching, and attempting to bite 

open the door of the Monte Carlo, indicating a 

positive reaction for drugs. Id. at 16-17, 25. 

McGrorty then contacted the Narcotics Strike Force 

and a search warrant was secured and executed on 

the car. Id. at 17-18. Recovered from the vehicle 

was the marijuana blunt under the passenger seat 

and loose marijuana from the floor of the passenger 

side. Id. at 18. Additionally, officers found a bag 

containing forty-eight jars of marijuana inside the 

trunk of the vehicle, as well as a First Judicial Traffic 

ticket in the name of [Cottle] which had been issued 

prior to the date in question . Id. at 18, 54.

Trial Court Opinion, 11/26/13, at 1-2. 
J-A25007-14

- 4 -

Cottle filed a motion seeking to suppress the items recovered from the 

vehicle. After a hearing, the trial court denied Cottle’s suppression motion 

and the case moved immediately to a bench trial. The trial court ultimately 

found Cottle guilty of the above-mentioned crimes and sentenced him to 

three to six years of incarceration, followed by two years of probation. This 

timely appeal followed. 

Cottle presents two issues for our review: 

1. Was the warrantless search of the glove box 

inside the vehicle [Cottle] was driving improper, 

such that all of the evidence recovered as a result 

of the search should have been suppressed?

2. Was the evidence adduced at trial legally 

insufficient to support [Cottle’s] convictions for 

firearms offenses and possession of a controlled 

substance?

Appellant’s Brief at 4. 

Cottle first challenges the trial court’s denial of his motion to suppress. 

When reviewing denial of a suppression motion, our review is limited to 

determining whether the factual findings are supported by the record and 

whether the legal conclusions drawn from those facts are correct. 

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013) (citation 

omitted). Additionally, since the Commonwealth prevailed in the 

suppression court, we may consider only the evidence of the Commonwealth 

and so much of the evidence for the defense as remains uncontradicted 
J-A25007-14

- 5 -

when read in the context of the record as a whole. Id. We may reverse 

only if the legal conclusions drawn therefrom are in error. Id.

Cottle contends that the officers’ warrantless search of the vehicle’s 

interior was impermissible because they did not have reasonable suspicion 

to believe that Cottle or any other occupant of the vehicle had a weapon, 

and therefore, the trial court erred in denying his suppression motion. 

Appellant’s Brief at 10. 

Until recently, in order for police officers to conduct a 

lawful search of an automobile without a warrant, 

the officers were required to have probable cause 

and exigent circumstances. However, recently, our 

Supreme Court ... removed the dual requirement of 

probable cause and exigency for a warrantless 

search of an automobile in Pennsylvania. In 

Commonwealth v. Gary, [] 91 A.3d 102 (Pa. 

2014), our Supreme Court held as follows:

In sum, our review reveals no compelling 

reason to interpret Article I, Section 8 of the 

Pennsylvania Constitution as providing greater 

protection with regard to warrantless searches 

of motor vehicles than does the Fourth 

Amendment. Therefore, we hold that, in this 

Commonwealth, the law governing warrantless 

searches of motor vehicles is coextensive with 

federal law under the Fourth Amendment. The 

prerequisite for a warrantless search of a 

motor vehicle is probable cause to search; no 

exigency beyond the inherent mobility of a 

motor vehicle is required. The consistent and 

firm requirement for probable cause is a strong 

and sufficient safeguard against illegal 

searches of motor vehicles, whose inherent 

mobility and the endless factual circumstances 

that such mobility engenders constitute a per 

se exigency allowing police officers to make 
J-A25007-14

- 6 -

the determination of probable cause in the first 

instance in the field.

Gary, 91 A.3d at 138 (emphasis added). Thus, the 

salient question for the suppression court [is] 

whether the police officers had probable cause to 

conduct the warrantless search.

Commonwealth v. Hudson, 92 A.3d 1235, 1241-42 (Pa. Super. 2014). 

In this case, the evidence establishes that the officers pulled over 

Cottle’s vehicle for traffic violations (including failing to use a turn signal 

when pulling out of a parking place and driving in an on-coming lane of 

traffic). As they approached the car and Cottle lowered the window, Officer 

McGrorty smelled freshly burnt marijuana. N.T., 11/21/11, at 7-10. This 

provided probable cause that criminal activity (i.e., the ingestion of an illegal 

substance) was afoot, establishing probable cause for the search of the 

vehicle. See Commonwealth v. El, 933 A.2d 657, 661 (Pa. Super. 2007), 

aff'd, 602 Pa. 126, 977 A.2d 1158 (2009) (“The standard for probable cause 

is whether the facts and circumstances within the officer's knowledge are 

sufficient to warrant a reasonably cautious person to believe that an offense 

has been or is being committed.”). Accordingly, as there was probable 

cause to conduct the warrantless search, we find no error in the trial court’s 

ruling.2

 

2 We note that in contrast to the analysis we have employed, the trial court 

explained its ruling in terms of the prior standard for warrantless searches of 

automobiles. Trial Court Opinion, 11/26/13, at 4-6. However, “[i]t is well 

settled that where the result is correct, an appellate court may affirm a 

lower court's decision on any ground without regard to the ground relied 
J-A25007-14

- 7 -

In his second issue, Cottle challenges the sufficiency of the evidence 

establishing his possession of the firearm or drugs found in the vehicle. 

When evaluating a sufficiency claim, our standard is 

whether, viewing all the evidence and reasonable 

inferences in the light most favorable to the 

Commonwealth, the fact[-]finder reasonably could 

have determined that each element of the crime was 

established beyond a reasonable doubt. This Court 

considers all the evidence admitted, without regard to 

any claim that some of the evidence was wrongly 

allowed. We do not weigh the evidence or make 

credibility determinations. Moreover, any doubts 

concerning a defendant's guilt were to be resolved by 

the fact[-]finder unless the evidence was so weak 

and inconclusive that no probability of fact could be 

drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). 

The trial court found that Cottle had constructive possession of both 

the firearm and the marijuana found in the vehicle’s trunk. Trial Court 

Opinion, 11/26/13, at 9-10. 

Constructive possession is a legal fiction, a pragmatic 

construct to deal with the realities of criminal law 

enforcement. Constructive possession is an 

inference arising from a set of facts that possession 

of the contraband was more likely than not. We 

have defined constructive possession as ‘conscious 

dominion.’ We subsequently defined ‘conscious 

dominion’ as ‘the power to control the contraband 

and the intent to exercise that control.’ To aid 

application, we have held that constructive 

possession may be established by the totality of the 

circumstances.

 

upon by the lower court itself.” Commonwealth v. Singletary, 803 A.2d 

769, 772-73 (Pa. Super. 2002). 
J-A25007-14

- 8 -

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation 

omitted). 

The evidence and all reasonable inferences therefrom, when viewed in 

the light most favorable to the Commonwealth, established that the vehicle 

Cottle was driving on the night in question belonged to his fiancée, Tahyna 

Jimenez. N.T., 11/21/12, at 58. The car had deeply tinted windows through 

which the officers could not easily see. Id. at 9-10. When pulled over and 

asked for his license, registration and insurance information, Cottle gave 

Officer McGrorty a state issued identification card and the vehicle’s 

registration, but no proof of insurance. Id. at 10. Officer McGrorty again 

asked for the insurance card. Id. Cottle then reached across the vehicle, 

touched the glove box, paused, pulled his hand away from the glove box and 

told Officer McGrorty that he did not have insurance. Id. At that point, 

Officer Finney told Officer McGrorty that as they were approaching the 

vehicle, he saw the person seated in the passenger seat shut the glove box 

and reach under the seat. Id. at 10-11. The firearm was found, fully loaded 

with 17 rounds of ammunition, in the glove box, along with another 

magazine loaded with eight rounds of ammunition. Id. at 13. The firearm, 

like the vehicle, belonged to Cottle’s fiancée. Id. at 59. She kept the 

firearm in an unlocked case in the home she shares with Cottle and their 

children. Id. at 68-69. Cottle knew that his fiancée owned this gun. Id. at 

65. Cottle’s fiancée did not know any of the other people that were in her 
J-A25007-14

- 9 -

vehicle when Cottle was stopped by the police. Id. at 69. Cottle’s fiancée 

denied knowing anything about the marijuana found in the passenger 

compartment or trunk of her car. Id. at 63. The marijuana in the trunk was 

found in a bag that also contained Cottle’s driver’s license and a ticket issued 

in his name. Id. at 54, 63.

We conclude that this evidence is sufficient to establish an inference 

that Cottle’s possession of the items at issue was more likely than not, and 

that he had “the power to control the contraband and the intent to exercise 

that control.” Cruz, 21 A.3d at 1253. Cottle knew of his fiancée’s firearm. 

It was kept in an unlocked case in his home, allowing for easy access 

thereto. The gun was fully loaded and found with additional ammunition. It 

was found in a location that Officer Finney saw the passenger access 

moments before the vehicle’s tinted windows were rolled down. Under the 

gaze of Officer McGrorty, Cottle reached for the glove box but stopped short 

of opening it. The totality of these circumstances give rise to the inference 

that Cottle brought the gun into the vehicle and that he had the passenger 

place the gun and ammunition in the glove box as the police approached the 

car. Furthermore, the fact that Cottle’s driver’s license and a traffic citation 

issued to him were found with the bag containing the 48-individually 

packaged bottles of marijuana in the trunk of the vehicle supports the 

inference that Cottle constructively possessed the marijuana recovered from 

the vehicle. 
J-A25007-14

- 10 -

In support of his argument to the contrary, Cottle attempts to 

analogize the facts of his case to the facts in Commonwealth v. Juliano, 

490 A.2d 891 (Pa. Super. 1985) and Commonwealth v. Boatwright, 4523 

A.2d 1058 (Pa. Super. 1982), in which this Court found the evidence 

insufficient to establish constructive possession. Cottle’s argument is 

unavailing, as these cases are readily distinguishable. 

Juliano involved a situation where police, alerted by an informant, 

observed two targets as they picked up luggage containing illegal drugs at 

Philadelphia International Airport. Before the targets collected the luggage 

from baggage claim, they observed them speaking with a third man. When 

the targets left the airport, with the luggage, they drove a short distance to 

a hotel, where they picked up the third man and the appellant, Juliano. The 

police subsequently pulled the car over and arrested the occupants. The 

trial court concluded that Juliano constructively possessed the luggage, 

which had been found “in front of the left rear seat which [he] had been 

occupying.” Juliano, 490 A.2d at 893. This Court reversed that 

determination because there was no evidence that established – directly or 

by inference – that the appellant knew what the bag contained. Id. at 894. 

In contrast, as outlined above, the evidence sufficiently supports the finding 

that Cottle knew of and exercised control over both the firearm and the 

marijuana. 
J-A25007-14

- 11 -

In Boatwright, the police received a radio call reporting three 

“suspicious” men sitting in a car at a particular location. Officers responded 

and as they approached the vehicle, they observed Boatwright, who was 

seated in the front passenger’s seat, “moving towards his left rear. The 

officer could not see appellant's hand or arm, only a movement of his body.” 

Boatwright, 453 A.2d at 1058. After removing Boatwright from the 

vehicle, the officer observed a firearm on the left rear floor of the vehicle. 

There were also men seated in the driver’s seat and the left rear seat. The 

car was registered to the driver’s girlfriend and the firearm was registered to 

a woman unknown to any of the men. We concluded that these facts could 

establish no more than Boatwright’s mere presence at the scene where the 

gun was found, and that mere presence was not sufficient to establish 

constructive possession. Id. at 1059. These facts are markedly different 

from the facts of the present case, in which there is evidence tying Cottle to 

the firearm, the vehicle, and the marijuana discovered in the vehicle’s trunk; 

in other words, evidence beyond Cottle’s mere presence at the scene where 

the contraband was discovered.3 

Judgment of sentence affirmed. 

 

3 To the extent that Cottle’s arguments are based on his girlfriend’s 

testimony that she left the firearm in the glove box, we note that the trial 

court expressly rejected this testimony as incredible. See Trial Court 

Opinion, 11/26/13, at 9. Accordingly, we are bound by this credibility 

determination. See Commonwealth v. Lutes, 793 A.2d 949, 960 

(Pa. Super. 2002).
J-A25007-14

- 12 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014