Commonwealth v. Aviles

WIEAND, Justice,

dissenting:

A majority of this Court, by its holding in this case, has made it possible to convict parents and rooming house owners *356 of possession of controlled substances which have been concealed by a child or roomer in his or her bedroom even though the parent or owner has no knowledge of the presence of the controlled substance. I dissent. The doctrine of constructive possession should not be expanded to make possible the conviction of persons who merely happen to be living in the same residence where drugs are found.

On January 23, 1989, police obtained a warrant to search a two story row house located at 181 West Wishart Street, Philadelphia. The warrant was issued upon information obtained from a confidential informant that drug related activities were being conducted at that address by persons named “Zoraida” and “Flea.” The affidavit recited also that police, on five separate occasions, had observed the delivery of small packages to the Wishart Street home by unidentified, Hispanic males. When police arrived to execute the warrant, they were admitted by appellant, who told police that the house was hers. Also present at the time of the search, according to police testimony, were a Hispanic male in his mid-twenties, an elderly Hispanic male, a juvenile Hispanic male approximately seventeen years of age and several small children. During the search, police found in the rear bedroom on the second floor a metal box containing a large quantity of cocaine and items of drug paraphernalia. This box was found in a dresser drawer which also contained children’s clothing. In the middle bedroom on the second floor, police discovered a tool box containing more than ten thousand ($10,000.00) dollars in cash. The box had been hidden under loose floorboards. Also found in the middle bedroom was a second tool box containing numerous items of drug paraphernalia.

The uncontradicted testimony was that the middle and rear bedrooms had been sublet by appellant to her sister and brother-in-law, who were the persons named “Zoraida” and “Flea” in the affidavit for the search warrant. The testimony was that “Zoraida” and “Flea” had been renting these two bedrooms from appellant continuously after December, 1988, and had occupied the same with their children. The trial court expressly accepted this testimony and found as a fact *357 that the two rooms had been occupied by appellant’s sister and brother-in-law. 1

Despite these facts, the trial court found appellant guilty. It did so, as it stated in its opinion, because appellant was the primary tenant, because she was present at the time of the search, because the rooms in which the drugs were found were unlocked and because the persons suspected of drug activities were her relatives. The trial court’s reasoning, more specifically, was as follows:

In the non-jury trial of Maria Aviles, this Court learned that the defendant admitted possession and control of the premises, and that she was the only resident adult present when the house was searched that evening. While the defendant herself did not sleep in either of the rooms containing the contraband, it is also true that neither of those rooms was locked on the date of the search. In addition, the persons allegedly wanted by the police for previous drug sales, Zoraida and Flea, were relatives of defendant, as well as her tenants. Evidence adduced at trial showed that suspicious drug activity was observed at the premises by police in the days immediately prior to obtaining the search warrant.

The cases cited by defendant in support of her position are all fact-specific, and thus not controlling in the case at bar. Maria Aviles was the lessee at the subject premises and she had access to all the bedrooms, none of which were locked. She permitted others to live in the house, and they happened to be her sister and brother-in-law. Ms. Aviles, therefore, must be presumed to be aware of the activities engaged in by her relatives/tenants when various males would visit the home for brief periods of time to make transactions. She must also be presumed to have known why floor boards were removed and then replaced after *358 large sums of cash were hidden under the floor of the middle bedroom, right next to that of the defendant.

My own review of the record discloses no evidence whatsoever that the drugs found in the two subleased bedrooms belonged to appellant or even that she was aware of their presence. The drugs were not found in the living boom or any other common area of the house, nor was there evidence to establish that appellant slept in, stored property in, or otherwise shared access to the two bedrooms in which the contraband was found. On the contrary, the uncontradicted testimony was that the two bedrooms in which the drugs, money and paraphernalia were found had been occupied by appellant’s sister and brother-in-law. The contraband, moreover, was not in plain view where it could have been observed by the primary tenant but was concealed in a dresser drawer and beneath a floorboard in the subtenant’s quarters.

The Commonwealth argues that it did not offer evidence that the rooms containing drugs had been sublet and that the trial court, therefore, was free to reject such testimony. This argument, however, ignores the fact that the Commonwealth had the burden of proving beyond a reasonable doubt that the cocaine found by police was in the possession and control of appellant. The trial court’s rejection of defense evidence would not have been a substitute for proof, and in no way would have relieved the Commonwealth from its burden of proving each and every element of the crime charged beyond a reasonable doubt. See: Commonwealth v. Scott, 409 Pa.Super. 313, 319 , 597 A.2d 1220, 1223 (1991); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 558 , 488 A.2d 29, 33 (1985). See also: Commonwealth v. Graham, 528 Pa. 250 , 596 A.2d 1117 (1991); Commonwealth v. Clinton, 391 Pa. 212 , 137 A.2d 463 (1958). In any event, it is patently clear that the evidence of such subletting and occupancy was not rejected but was specifically accepted by the trial court acting as fact finder. An examination of the record discloses that the prosecution was unable to present any affirmative evidence that appellant, rather than the occupants of the bedrooms, knew of the presence of contraband and/or exercised control over the *359 bedrooms in which it was found. 2 Moreover, even if the uncontradicted testimony in this case were to be rejected, there is no evidence of appellant’s knowledge of the presence of contraband or control of the bedrooms in which contraband was found other than that she was the primary tenant of the property.

The Commonwealth, being unable to prove actual possession of contraband by appellant, relied on the doctrine of constructive possession. “If the Commonwealth is unable to prove that a suspect had a controlled substance on [her] person, the Commonwealth may show constructive possession of illicit drugs, and such may be demonstrated by showing that a defendant had power of control over and intended to exercise such control of [the] substance.” Commonwealth v. Davis, 331 Pa.Super. 285, 304 , 480 A.2d 1035, 1045 (1984). See also: Commonwealth v. Bruner, 388 Pa.Super. 82, 98 , 564 A.2d 1277, 1284-1285 (1989); Commonwealth v. Harris, 263 Pa.Super. 110, 119-120 , 397 A.2d 424, 429 (1979). “ ‘The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown but where the inference that there has been actual possession is strong.’ ” Commonwealth v. Carroll, 510 Pa. 299, 302 , 507 A.2d 819, 820 (1986), quoting Whitebread and Stevens, To Have and To Have Not, 58 U.Va.L.Rev. 751, 755 (1972). See also: Commonwealth v. Stembridge, 397 Pa.Super. 1, 4 , 579 A.2d 901, 903 (1990).

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.” Commonwealth v. Davis, 444 Pa. 11, 15 , 280 A.2d 119, 121 (1971). We subsequently defined “conscious *360 dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206 , 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our lower courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.

Commonwealth v. Mudrick, 510 Pa. 305, 308 , 507 A.2d 1212, 1213 (1986). See also: Commonwealth v. Santiesteban, 381 Pa.Super. 18, 21-22 , 552 A.2d 1072, 1074 (1988); Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 392-393 , 539 A.2d 849, 851 (1988).

Constructive possession may in some instances be inferred from the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 369 , 318 A.2d 327, 329 (1974). See also: Commonwealth v. Macolino, 503 Pa. 201, 206 , 469 A.2d 132, 134 (1983); Commonwealth v. Parsons, 391 Pa.Super. 273, 284 , 570 A.2d 1328, 1334 (1990); Commonwealth v. Keefer, 338 Pa.Super. 184, 189 , 487 A.2d 915, 918 (1985). “An accused may be charged with the knowledge of the location of the contraband, which is essential to the proof of an intent to exercise control, if the contraband is found in places peculiarly within the control of the accused.” Commonwealth v. DeCampli, 243 Pa.Super. 69, 75 , 364 A.2d 454, 456-457 (1976). See also: Commonwealth v. Stamps, 493 Pa. 530, 538-539 , 427 A.2d 141, 145 (1981); Commonwealth v. Diaz, 319 Pa.Super. 538, 539-540 , 466 A.2d 674, 675 (1983); Commonwealth v. Thompson, 286 Pa.Super. 31, 34-35 , 428 A.2d 223, 224 (1981). However, “where others have equal access to contraband, evidence of defendant’s mere opportunity to control the contraband is insufficient to sustain a conviction [for] its possession.” Commonwealth v. Banahasky, 250 Pa.Super. 495, 499 , 378 A.2d 1257, 1259 (1977). See also: Commonwealth v. Keblitis, 500 Pa. 321, 324 , 456 A.2d 149, 151 (1983); Commonwealth v. Chenet, 473 Pa. 181, 184-185 , 373 A.2d 1107, 1108-1109 (1977); Commonwealth v. Fortune, supra, 456 Pa. at *361 368-369 , 318 A.2d at 328-329 ; Commonwealth v. Davis, 444 Pa. 11, 16 , 280 A.2d 119, 121 (1971); Commonwealth v. Tirpak, 441 Pa. 534 , 272 A.2d 476 (1971). “It is well settled that facts giving rise to mere ‘association’, ‘suspicion’ or ‘conjecture’ will not make out a case of constructive possession.” Commonwealth v. Valette, 531 Pa. 384 , -, 613 A.2d 548, 551 (1992). Still, where the defendant is shown to have access to the contraband, “the Commonwealth may demonstrate constructive or joint constructive possession, from the totality of the circumstances, even though others may have had access to the drugs.” Commonwealth v. Davis, supra, 331 Pa.Super. at 305 , 480 A.2d at 1045 (emphasis deleted). Thus, in situations where more than one person has access to the contraband, the Supreme Court has held that “constructive possession may be found in either or both actors if contraband is found in an area of joint control and equal access.” Commonwealth v. Mudrick, supra, 510 Pa. at 309, 507 A.2d at 1214 . In such cases, it is the “shared access to and control of the area where the contraband [is] found” which is critical to a finding of constructive possession. Id.

Under the circumstances of the instant case, I would hold that the Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that appellant had joint control of and equal access to the drugs, cash and paraphernalia found in the two bedrooms occupied by Zoraida and Flea. A close examination of the cases interpreting the doctrine of constructive possession supports this view.

In Commonwealth v. Macolino, supra, the Supreme Court observed that a bedroom is a more private place with limited access and is, therefore, usually subject to the exclusive control of its occupant. Id., 503 Pa. at 207 , 469 A.2d at 135 . See also: Commonwealth v. Gilchrist, 255 Pa.Super. 252, 255 , 386 A.2d 603, 605 (1978); Commonwealth v. DeCampli, supra, 243 Pa.Super. at 74-76 , 364 A.2d at 456-457 . The Macolino Court held that a husband could be found to have been in constructive possession of drugs found in a bedroom closet which he shared with his wife. On the other hand, in Commonwealth v. Hannan, 229 Pa.Super. 540, 544-545 , 331 A.2d 503, 505 (1974), *362 the Superior Court held that a husband could, not be deemed in constructive possession of drugs found in his wife’s purse and dresser where there was no evidence that the husband had exercised control over or had any knowledge of the presence of drugs in his wife’s personal belongings. The Court in Hannan held further that the husband could not be deemed to be in constructive possession of marijuana which had been hidden in a drawer in the main bathroom of the house. The Court rejected the Commonwealth’s position that the husband’s ownership of the house and presence at the time of the search constituted sufficient evidence to permit a finding of constructive possession. The Court said:

In this case, no drugs were found on the person of the appellant Mr. Hannan nor was there any evidence of knowledge of the presence of drugs in his home. Nine persons were present at the time of the search, all of whom were staying at the house for varying lengths of time. A nurse, renting one of the bedrooms, was home for Christmas vacation. And, just four days before the search, twenty youths had attended a Christmas party at the Hannan house. Each and every individual could have had “equal access” to the drawer in the main bathroom.... [T]he bag of marijuana was found secreted in a drawer amidst numerous items in a metal cabinet. It is sheer speculation and certainly not that quality of evidence that would be sufficient to convict beyond a reasonable doubt to presume that Mr. Hannan had either knowledge of or indeed, “possessed” the marijuana discovered by the police.

Commonwealth v. Hannan, supra, 229 Pa.Super. at 546-547 , 331 A.2d at 506 . 3

In the instant case, there was no evidence that appellant had occupied or shared with others the two bedrooms where contraband was found. Rather, the evidence was that she had sublet those rooms to her sister and brother-in-law. To permit a finding that she had constructive possession of drugs *363 found in these two rooms would permit homeowners to be found criminally liable whenever a person who rented a room kept cocaine or other controlled substances in the room. It would permit parents to be found in constructive possession of drugs secreted by a son or daughter in his or her bedroom. It would permit a finding of constructive possession even where a homeowner had no knowledge of the presence of drugs. To allow such a result is to allow a finding of guilt based on pure speculation. It would expand the principle of constructive possession beyond the facts of all prior decisions. Moreover, it defies the application of logic to the facts. It is not reasonable in such cases to infer knowledge of the drugs by the owner or an intent by the owner to exercise control over the contraband.

My conclusion is supported further by the decision in Commonwealth v. Luddy, 281 Pa.Super. 541, 547-550 , 422 A.2d 601, 604-606 (1980), cert. denied, 454 U.S. 825 , 102 S.Ct. 114 , 70 L.Ed.2d 99 (1981), where evidence was held insufficient to establish that a mother had had constructive possession of marijuana found in the crisper compartment of a refrigerator. The evidence showed that she had been one of four adults living in the house and that no marijuana had been found in her bedroom or on her person. Finally, there was no evidence as to how long the marijuana had been in the refrigerator or who had put it there. A similar conclusion was reached by the Supreme Court in Commonwealth v. Chenet, supra. In that case, marijuana had been found in the living room and kitchen of the defendant’s trailer and in the area immediately outside the trailer. In reversing the defendant’s conviction for possession of the marijuana, the Supreme Court held that possession of the contraband was not established where no drugs had been found in the defendant’s bedroom or on his person, but only in areas which were equally accessible to the defendant’s roommate and the roommate’s girlfriend. See also: Commonwealth v. Fortune, supra, 456 Pa. at 369 , 318 A.2d at 329 (“We cannot assume that a resident of a home, where guests are present, knows of the full contents of the premises.”). Compare: Commonwealth v. Frometa, 398 Pa.Super. *364 110 , 580 A.2d 865 (1990) (tenant of multi-unit apartment building could not be found in constructive possession of drugs found in basement of building which was accessible to other tenants in building).

The contraband in this case was not found in portions of the residence occupied jointly by those in residence. It was found concealed in bedrooms which had been sublet by the primary tenant and which were occupied by the subtenants. The fact that the subtenants were relatives of appellant and that the bedrooms were unlocked, in my judgment, was entirely insufficient to show that the appellant had knowledge of the concealed contraband or an intent to exercise conscious dominion over it. Actual possession under the circumstances established by the evidence in this case cannot be said to be more likely than not. The evidence was not of a quality which proved appellant’s guilt beyond a reasonable doubt. Therefore, I would reverse the judgment of sentence and discharge the appellant.

President Judge ROWLEY, and MONTEMURO and FORD ELLIOTT, JJ., join.

. There was also testimony presented by the defense that the subtenants had installed locks on the doors to the rented bedrooms. However, the testimony of the police officers, who had participated in the search, established that the middle and rear bedrooms had not been locked at the time the house was searched. The officers were unable to recall whether or not the doors to these rooms had been equipped with locks.

. There was no evidence at trial that Zoraida or Flea had advised suppliers about the time when processing would be complete or that a brick of cocaine had been cut by "the aforementioned persons ... on a kitchen table.” The only references to these incidents were attributed to the unnamed informant in the affidavit for search warrant.

. With respect to the wife, the Hannan Court held that she could be found to be in constructive possession of drugs found in her purse and dresser, but not of marijuana found hidden in the main bathroom.