Suppression in drug case overturned by Pa. court
A court order issued last year by a Cambria County judge suppressing evidence in a drug case has been overturned by the Pennsylvania Superior Court.
The appeals court decision means that Tyler Lavar Cottingham, 35, of Johnstown, will be required to go to trial on charges of possession with intent to deliver marijuana, which was found under the seat of a car he was driving on July 8, 2017, although he has the option of requesting a review by the state Supreme Court.
The Cottingham case landed in the Superior Court after the prosecution, represented by Cambria County Assistant District Attorneys Scott M. Lilly and Warren Lee Crilly, appealed the decision to suppress by Judge David J. Tulowitzki.
The Superior Court, in an opinion written by Judge John T. Bender, reversed the trial judge’s order that found the government could not prove Cottingham knew, or had “constructive possession” of, the marijuana, which was found under the front seat of the Nissan automobile he was driving.
The vehicle was owned by another person and there was a female in the vehicle with Cottingham.
The Cambria judge did not suppress a flashlight stun gun — the court called it similar to a cattle prod — found between the driver’s seat and the vehicle’s center console, meaning Cottingham also faces a weapons charge.
The weapon was “in plain view” of Cottingham, and Tulowitzki allowed that charge to go forward.
Cottingham drew the attention of police, according to the affidavit of probable cause, when a man named Derek Rose, 32, was placing his vehicle in the garage near his home.
According to the affidavit, Cottingham drove up to Rose, got out of his vehicle and struck Rose a couple of times while yelling, “You know what this is about.”
“If you want to take this to the next level, I have something for you under the seat,” he said to Rose.
He is alleged to have hit Rose a third time in the head.
At this point, the Superior Court noted, Rose allegedly drew a Ruger .380-caliber handgun and as Cottingham turned to run away, shot him four times in the back.
Rose placed the gun on the trunk of his car and called 911.
Police charged Rose with simple assault, and he was sentenced by Cambria President Judge Norman A. Krumenacker III on Dec. 5, 2017, to 23 months’ probation, according to state court records.
Meanwhile, Cottingham, who faced the drug and weapons offenses, through his attorney, Aaron Michael Ling, asked the evidence against him be suppressed.
The Superior Court panel ruled the police search of the Nissan after the incident was proper because police obtained written permission from the owner of the vehicle for the search.
The panel ruled, however, that the decision by the Cambria judge, contending the government could not prove Cottingham was aware of or had control of the marijuana in a jar under the front seat, was not a question to be raised during a suppression argument but was something the defense could present to a jury.
“Possession, constructive or otherwise, is an element of the criminal offenses at issue; it is not a factor pertinent to suppression analysis in this case,” the Superior Court ruled.
It went on the state, “Accordingly, we conclude that the trial court clearly erred when it suppressed evidence of the seized marijuana and paraphernalia.”