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J-S39023-22  

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

ICHOLAS LEE CLUGSTON       

 

Appellant 

 No. 169 MDA 2022 

Appeal from the Judgment of Sentence Entered May 27, 2021 
In the Court of Common Pleas of Juniata County Criminal Division at 
No(s):  CP-34-CR-0000021-2020 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

ICHOLAS LEE CLUGSTON       

 

Appellant 

 No. 170 MDA 2022 

Appeal from the Judgment of Sentence Entered May 27, 2021 
In the Court of Common Pleas of Juniata County Criminal Division at 
No(s):  CP-34-CR-0000122-2020 

EFORE:  PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. 

MEMORANDUM BY BENDER, P.J.E.:         FILED: MARCH 21, 2023 

 

Appellant,  Nicholas  Lee  Clugston,  appeals  from  the  judgments  of 

sentence  of  an  aggregate  term  of  four  to  ten  years’  incarceration  imposed 

following  his  convictions  for,  inter  alia,  access  device  fraud  and  receipt  of 

stolen property.  We affirm.     

 

The  facts  are  straightforward.    On  November  27,  2019,  Collin  Smith 

received an alert from his bank that his debit card was involved in suspicious 

     

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activity.  Smith realized that his debit card was missing and checked his bank 

records.  He noticed two unauthorized purchases on November 27: one from 

a  Rutter’s  convenience  store  at  6:55  p.m.,  and  the  other  from  a  Sheetz 

convenience store at 10:14 p.m.  Smith called the Pennsylvania State Police 

and spoke to Trooper Zebulin Evans.  Smith testified that he did not authorize 

Appellant or anyone else to make these purchases.   

 

Chelsea Hosler testified that her car was broken into and her wallet was 

taken.1  Hosler received a text message from her bank reporting suspicious 

activity;  specifically,  that  her  card  was  being  used  at  3:03  a.m.  at  the 

Mifflintown Mart.  Hosler did not authorize anyone to make this purchase. 

 

Trooper Evans testified that he spoke to Smith on November 27, 2019.  

Based on that information, he proceeded to the Rutter’s store.  The employees 

permitted Trooper Evans to examine their video surveillance.  He determined 

that around the time of the reported transaction a silver, dual-wheeled diesel 

truck entered the parking lot.  A male is seen exiting the passenger side of 

the  vehicle  and  making  purchases  in  the  store.    The  male  is  then  seen 

reentering the passenger side of the vehicle.   

 

Trooper  Evans  took  images  of  the  truck  and  met  with  Trooper  Cody 

Booher.  The two men were able to determine that the vehicle was an early 

2000s Chevrolet diesel truck.  The two separated.  Shortly thereafter, Trooper 

Booher radioed Trooper Evans to report a sighting of a vehicle matching the 

____________________________________________ 

1 Ms. Hosler was not certain of the date, testifying it occurred a day or two 
before Thanksgiving, which fell on November 28, 2019.   

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description.    He  effectuated  a  traffic  stop  and  spoke  with  the  driver,  later 

identified as Appellant.  During the interaction, Appellant told Trooper Booher 

that he did not have any identification and gave the name John Clugston, who 

is Appellant’s brother.  Trooper Booher saw cartons of cigarettes and a debit 

card in the center console.  The name on the card was Collin Smith.  Appellant 

informed him that the card may have belonged to a friend of his by the name 

of  John  Mosser.    Trooper  Booher  took the  card  and  radioed  Trooper  Evans, 

who confirmed that Collin Smith was one of the victims and agreed to meet 

Trooper  Booher.    Trooper  Evans  arrived,  and  as  the  two  approached 

Appellant’s  vehicle,  Appellant  sped  off  at  a  high  rate  of  speed  and  a  police 

pursuit commenced.  The chase lasted almost one hour, and Appellant struck 

several police vehicles during the chase.  Eventually, Trooper Booher was able 

to  initiate  a  PIT  (precision  immobilization  technique),  causing  Appellant’s 

vehicle  to  travel  down  an  embankment  and  into  a  field.    Appellant  fled  the 

scene on foot and was not apprehended that evening.   

Troopers recovered a  bag inside the vehicle with Appellant’s name on 

the tag.  Trooper Booher obtained Appellant’s driver’s license photograph and 

confirmed  that  he  was  the  driver.    Trooper  Evans  also  recovered  from  the 

vehicle an additional card belonging to Smith, as well as Hosler’s bank card 

and  her  wallet.    The  cigarettes  were  determined  to  have  been  purchased 

during one of the fraudulent transactions.   

Appellant was thereafter charged at  the above-captioned  dockets.  At 

docket CP-34-CR-21-2020, Appellant was charged with thirty-eight counts, all 

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of which related to the police chase.  Appellant does not raise any challenges 

to  his  convictions  at  that  docket.    At  docket  CP-34-CR-0000122-2020, 

Appellant was charged with two counts of access device fraud, 18 Pa.C.S. § 

4106(a)(3),  and  two  counts  of  receipt  of  stolen  property,  18  Pa.C.S.  § 

3925(a).    This  consolidated  appeal  exclusively  challenges  those  four 

convictions.   

The matters were consolidated for trial and Appellant was found guilty 

of  several  charges,  including  the  four  convictions  at  issue  here,  following  a 

jury trial held on March 22, 2021.  Appellant was sentenced on May 27, 2021.  

At each count of access device fraud, Appellant received a sentence of 6 to 12 

months of incarceration, set consecutively to each other and consecutive to 

the other docket.  The trial court determined that the receipt of stolen property 

charges merged with the access device fraud charges.  Appellant filed a timely 

notice of appeal at each docket, and we consolidated the appeals.  Appellant 

raises two issues for our review:  

1.  Was  the  evidence  at  trial  insufficient  to  prove  beyond  a 
reasonable  doubt  that  Appellant  committed  the  crime  of  access 
device  fraud  where  the  Commonwealth  failed  to  establish  that 
Appellant possessed an access device knowing that it belonged to 
another person? 

2.  Was  the  evidence  at  trial  insufficient  to  prove  beyond  a 
reasonable doubt that Appellant committed the crime of receiving 
stolen property where the Commonwealth failed to establish that 
Appellant intentionally retained a debit card knowing it had been 
stolen or believing it had probably been stolen?   

Appellant’s Brief at 10.   

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Each  claim  challenges  the  sufficiency  of  the  evidence  to  convict.    Our 

standard of review is well-settled: 

Whether  sufficient  evidence  exists  to  support  the  verdict  is  a 
question of law; our standard of review is de novo and our scope 
of  review  is  plenary.    We  review  the  evidence  in  the  light  most 
favorable  to  the  verdict  winner  to  determine  whether  there  is 
sufficient evidence to allow the [fact-finder] to find every element 
of a crime beyond a reasonable doubt. 

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations 

and  quotation  marks  omitted).    We  must  determine  whether  the  evidence 

admitted,  and  all  reasonable  inferences  drawn  from  that  evidence,  support 

the elements of the offenses beyond a reasonable doubt.  Commonwealth. 

v. Woodard, 129 A.3d 480, 490 (Pa. 2015).  The Commonwealth may sustain 

its burden by wholly circumstantial evidence.  Commonwealth v. Spell, 28 

A.3d 1274, 1278 (Pa. 2011).  “The facts and circumstances established by the 

Commonwealth  need  not  be  absolutely  incompatible  with  the  defendant’s 

innocence, but the question of any doubt is for the jury 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. Aguado, 

760 A.2d 1181, 1185 (Pa. Super. 2000). 

Beginning with the access device fraud charges, Appellant was convicted 

of  violating  18  Pa.C.S.  §  4106(a)(3),  which  requires  the  Commonwealth  to 

establish  that  the  actor  “possess[ed]  an  access  device  knowing  that  it  is 

counterfeit,  altered,  incomplete  or  belongs  to  another  person  who  has  not 

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J-S39023-22 

authorized its possession.”  The statute defines “access device” to include the 

credit/debit cards at issue here. 

Appellant challenges the element of possession and directs our attention 

to Commonwealth v. Ballard, 244 A.3d 815 (Pa. Super. 2020), a case that, 

like this one, involves a conviction for access device fraud where direct proof 

that the defendant used the access devices was lacking.  In Ballard, a store 

manager observed suspicious activity at the store’s gas pumps.  Specifically, 

he saw an individual, known from previous encounters, pumping gas into two 

vehicles, a black SUV and a tan SUV.  The manager knew that this individual 

had  previously  used  multiple  cards  to  pump  gas  into  multiple  cars.    This 

individual was not the appellant. 

A police officer responded and stopped the respective drivers of the two 

SUVs, Todd Williams and Michael Hawkins.  The officer asked both men if they 

had any credit cards in their possession, and they each turned over several 

cards that were later determined to be fraudulent.  Hawkins allowed the officer 

to search his vehicle, where the appellant was seated.  The appellant turned 

over  five  credit  cards  that  the  officer  determined,  via  a  credit  card  reader, 

were fraudulent.  The officer acknowledged that the appellant was not seen 

pumping gas or using any of the credit cards. 

The  Ballard  decision  is  significant  largely  for  its  analysis  of  what 

constitutes  an  “access  device.”    The  appellant  in  Ballard  argued  that  the 

Commonwealth failed to present sufficient evidence that the cards in question 

were capable of being used.  See id. at 819 n.2 (explaining that the appellant 

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conceded the Commonwealth is not required to show actual use of the cards 

but  claimed  that  “that  the  statute’s  plain  text  requires  that  the  prosecution 

establish only that the card he possessed had the capability to do so”) (citing 

brief).  We disagreed, explaining that the statute does not require proof that 

the access device “be actually or technologically capable of working” and that 

the plain meaning of “can be used” simply means that the item could possibly 

be used.  Id. at 820.  We noted that a contrary interpretation would produce 

absurd results, as an individual who managed to cancel or deactivate a stolen 

access device would thereby “absolv[e] defendants who happen to have stolen 

from a prudent card-holder.”  Id.   

Appellant  argues  that  this  case  is  unlike  Ballard  in  that  he  did  not 

possess  the  access  devices  on  his  person.    “Rather,  [Appellant]  merely 

complied with a request by police that he hand them the debit card” located 

in  the  vehicle’s  console,  which  was  “a  communal  space  available  to  any 

occupant  of  the  vehicle,  past  or  present.”    Appellant’s  Brief  at  21.    In  this 

regard,  Appellant  suggests  that  the  surveillance  video  which  showed  an 

individual exiting Appellant’s passenger side establishes that the passenger is 

the guilty party.   

We agree that Ballard is distinguishable in terms of actual possession.  

But this is of  no help to  Appellant  as the Commonwealth  may establish the 

element of possession via constructive possession.    

This  Court  has  held  that  “[p]ossession  can  be  found  by  proving 
actual  possession,  constructive  possession,  or  joint  constructive 
possession.”    Commonwealth  v.  Heidler,  741  A.2d  213,  215 

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finding  of  constructive  possession). 

(Pa. Super. 1999).  Where a defendant is not in actual possession 
of  the  prohibited  items,  the  Commonwealth  must  establish  that 
the  defendant  had  constructive  possession  to  support  the 
conviction.  Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. 
Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported 
by  a 
  See  also 
Commonwealth  v.  Parker,  847  A.2d  745  (Pa.  Super.  2004) 
(same).  “Constructive possession is a  legal fiction, a pragmatic 
construct to deal with the realities of criminal law enforcement.”  
Hopkins,  supra  at  820  (citation  and  quotation  omitted).    “We 
have  defined  constructive  possession  as  conscious  dominion,” 
meaning  that  the  defendant  has  “the  power  to  control  the 
contraband and the intent to exercise that control.”  Id. (citation 
and  quotation  omitted).    “To  aid  application,  we  have  held  that 
constructive possession may be established by the totality of the 
circumstances.”  Id. (citation and quotation omitted). 

Commonwealth  v.  Parrish,  191  A.3d  31,  36  (Pa.  Super.  2018).  

Constructive  possession  may  be  proved  by  circumstantial  evidence.    Id.  at 

37. 

Appellant’s  brief  does  not  discuss  constructive  possession.    He  does, 

however,  reference  the  concept  by  claiming  “he  was  merely  present  in  a 

vehicle  in  which  a  debit  card  was  in  an  open  common  area  of  the  vehicle.”  

Appellant’s Brief at 22.  It is true that mere presence is insufficient to establish 

constructive  possession.    Parrish,  191  A.3d  at  37.    However,  the 

Commonwealth  may  prove  the  elements  of  constructive  possession  via  a 

totality  of  the  circumstances.    In  this  regard,  Appellant  fails  to  address  the 

significant circumstantial evidence of guilt.  First, Appellant’s vehicle contained 

Hosler’s  wallet  in  addition  to  the  access  devices.    To  the  extent  that  the 

evidence suggests a second actor may have been involved, the fact that an 

item that was stolen from Hosler’s vehicle was in his presence suggests that 

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Appellant  was  a  participant  in  any  joint  scheme.    Second,  and  relatedly, 

authorities  found  cigarettes  inside  Appellant’s  vehicle  that  were  purchased 

during the fraudulent transactions reported by the victims.  Again, as a matter 

of  circumstantial  proof,  the  proceeds  being  present  in  the  vehicle  where 

Appellant  is  the  sole  occupant  is  powerful  evidence.    Finally,  Appellant 

diminishes  the  inferences  that  may  be  drawn  from  his  flight  and  evasive 

behavior.  In Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011), this 

Court  addressed  whether  the  Commonwealth  established  constructive 

possession of a firearm located in a compartment on the passenger side of a 

vehicle.  Like here, the appellant in Cruz was the sole person in the vehicle.  

We stated: 

[The a]ppellant was the only person found in the vehicle.  The gun 
in question was found in a compartment on the passenger side of 
the  vehicle.    Officer  Doyle  testified  that  [the]  appellant  was 
observed  moving  sideways  toward  the  passenger  side  of  the 
vehicle  immediately  after  Officer  Doyle  turned  on  his  lights  and 
siren.  During questioning, [the] appellant gave Officer Doyle five 
or six different names and multiple birthdates, thus exhibiting a 
consciousness of guilt.  Under these circumstances, we think the 
trial  court  was  justified  in  concluding  that  [the]  appellant  had 
knowledge  of  the  gun,  had  the  power  and  intent  to  exercise 
control of the gun, and, therefore, had constructive possession of 
the gun…. 

Instantly, [the] appellant was the only person in the vehicle, he 
was seen moving toward where the gun was found as soon as he 
was aware that he was being stopped, and he exhibited a marked 
consciousness  of  guilt.    We  find  that  the  evidence  at  trial  was 
sufficient to find constructive possession. 

Id. at 1253. 

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The evidence of flight and the corresponding strength of the inference 

regarding guilty knowledge is much stronger here.  In addition to giving the 

name of his brother during the traffic stop, Appellant led officers on a chase 

that  lasted  almost  one  hour.    These  actions  are  highly  suggestive  of 

consciousness of guilt.2  We therefore conclude that the Commonwealth met 

its burden. 

Turning to the sufficiency of the evidence to convict Appellant of receipt 

of stolen property, much of our foregoing analysis applies.  To establish that 

crime,  the  Commonwealth  must  establish  that  Appellant  “(1)  intentionally 

acquir[ed] possession of the movable property of another; (2) with knowledge 

or  belief  that  it  was  probably  stolen;  and  (3)  the  intent  to  deprive 

permanently.”    Commonwealth  v.  Arias,  286  A.3d  341,  350  (Pa.  Super. 

2022) (quoting Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 

2015) (en banc)).   

Appellant  challenges  the  second  element,  often  referred  to  as  “guilty 

knowledge” of the crime.  Commonwealth v. Gomez, 224 A.3d 1095, 1099 

(Pa.  Super.  2019).    To  prove  that  Appellant  knew  the  property  in  his 

possession was stolen or believed it was probably stolen, the Commonwealth 

____________________________________________ 

2 Appellant also avers that the Commonwealth failed to establish that he knew 
the access devices belonged to persons who did not authorize his possession.  
This assertion is essentially duplicative of the claim that the Commonwealth 
failed  to  establish  the  elements  of  receipt  of  stolen  property,  and  the 
circumstantial  evidence  cited  therein  equally  applies  to  that  aspect  of  his 
access device fraud charges. 

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may rely on circumstantial evidence, including the lack of an explanation for 

possessing recently stolen goods.  Id. at 1100.   

Circumstances that can establish the requisite knowledge on the 
part of the defendant include: a short time between the theft and 
defendant’s  possession;  the  defendant’s  conduct  at  arrest  and 
while in possession of the stolen property; the type of property; 
the location of the theft in comparison to the location where the 
defendant gained possession; the value of the property compared 
to the price paid for it; and the quantity of the stolen property. 

Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa. Super. 2006) (citation 

omitted).   

Just  as  mere  presence  is  not  enough  to  establish  constructive 

possession,  the  mere  possession  of  property  that  is  stolen  is  likewise 

insufficient.    Id.    However,  “guilty  knowledge  may  be  inferred  from 

unexplained,  or  unsatisfactorily  explained,  possession  of  recently  stolen 

goods.”    Id.  (quoting  Commonwealth  v.  Bowens,  265  A.3d  730,  745-46 

(Pa. Super. 2021) (en banc)).   

As  with  our  analysis  of  constructive  possession,  the  circumstantial 

evidence justifies the inference that Appellant believed that the access devices 

were probably stolen.  His flight from a routine traffic stop makes little sense 

otherwise.  Furthermore, the nature of the access device cards themselves is 

significant.  Appellant possessed a card bearing Smith’s name.  While we are 

required  to  view  the  evidence  in  the  light  most  favorable  to  the 

Commonwealth,  even  viewing  the  evidence  in  the  light  most  favorable  to 

Appellant illustrates that his flight makes no sense.  If Appellant truly believed 

that his friend had left the card in his possession, the logical question would 

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be why Mosser had a card belonging to someone else.  The obvious and logical 

inference is that Appellant had guilty knowledge and responded by trying to 

flee.  The circumstantial evidence was sufficient to establish Appellant’s guilty 

knowledge, and no relief is due. 

Judgments of sentence affirmed.   

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

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