Commonwealth v. Hunt

HOFFMAN, Judge,

dissenting:

Appellant contends that the lower court erred in (1) refusing to grant her motion to suppress, (2) overruling her demurrer to the Commonwealth’s evidence, and (3) finding sufficient evidence to convict appellant of possession of marijuana with intent to deliver. I agree that the lower *150 court erred in overruling appellant’s demurrer because the Commonwealth failed to prove that appellant possessed the drugs in question. Therefore, I would reverse and discharge appellant.

On October 6, 1976, appellant received a non-jury trial in the York County Court of Common Pleas on a charge of possession of a controlled substance with intent to deliver. 1 The Commonwealth presented the following evidence. On May 19, 1976, at approximately 8:00 p.m., two officers of the York City Police Department entered a three story house at 234 Elm Terrace, York, pursuant to a search warrant. Upon entering the premises, the officers discovered appellant, another adult, and two children. The officers took appellant and the other adult into the kitchen where the officers informed them of their rights and of the contents of the search warrant.

In searching the house, the officers found a small marijuana plant on an enclosed porch and several clear plastic bags of marijuana in a brown paper bag on the bottom of a closet in a second story bedroom. The bags contained a total of about one-half pound of marijuana. 2

At the close of the Commonwealth’s case, appellant demurred to the evidence. The lower court overruled appellant’s demurrer. Appellant did not testify or present any defense. The lower court found appellant guilty and imposed a sentence of not less than one nor more than twelve months imprisonment. This appeal followed.

Appellant contends that-the lower court erred in overruling her demurrer to the Commonwealth’s evidence. Specifically, appellant contends that the Commonwealth failed to prove that she had possession of the marijuana confiscated from the searched premises. I agree.

*151 When the offense charged is possession of contraband and the defendant does not have literal possession of the contraband, the Commonwealth can only prove the offense by demonstrating that the defendant exercised conscious dominion and control over the item. Commonwealth v. Davis, 444 Pa. 11 , 280 A.2d 119 (1971). Thus, the Commonwealth must prove that the defendant “has the power to control and the intent to control the item. . . . ” Commonwealth v. Ferguson, 231 Pa.Super. 327, 331 , 331 A.2d 856, 859 (1974). The Commonwealth need not prove possession by direct evidence; circumstantial evidence of the power and the intent to exercise control may establish possession sufficiently to sustain a conviction for possession of drugs. Commonwealth v. Ferguson, supra. However, “since the crime of narcotics possession is by its nature unique to the individual, presence at the scene of such a crime is alone not enough to implicate a party in the commission of the crime.” Commonwealth v. Sungenis, 223 Pa.Super. 517, 519 , 303 A.2d 524, 525 (1971). “ ‘[T]he fact of possession loses all persuasiveness if persons other than the accused had equal access . to the place in which the property was discovered . . ..’ Commonwealth v. Davis, 444 Pa. 11, 16 , 280 A.2d 119, 121 (1971), quoting 9 J. Wigmore, Evidence § 2513 (3d ed. 1940). When the crime charged is the illegal possession of narcotic drugs, the presence of a person at the scene, without a consideration of the totality of the circumstances, does not prove the crime.” Commonwealth v. Fortune, 456 Pa. 365, 369 , 318 A.2d 327, 329 (1974).

In Commonwealth v. Tirpak, 441 Pa. 534 , 272 A.2d 476 (1971), police officers entered a house pursuant to a warrant and found seven people, including four appellants, in the game room. The police found marijuana in an open jar in the center of the room as well as marijuana butts in an ashtray. The Commonwealth conceded that there was no marijuana on the person of any appellant nor was any appellant smoking marijuana. In reversing the convictions for drug possession, our Supreme Court held:

*152 “Under these circumstances, the basis of the Commonwealth’s case was the legal theory of constructive or joint possession. The Commonwealth attempts to prove this by proof of the appellants at the scene, opportunity to commit or join in the possession or control of the marijuana, guilt by association, and suspicion or conjecture. Under these particular facts and circumstances, this is not sufficient to prove beyond a reasonable doubt that these four defendants were guilty of . the possession or control of [drugs].” Commonwealth v. Tirpak, supra, 441 Pa. at 537 , 272 A.2d 476, at 478 .

An evaluation of the facts of the instant case reveals that the Commonwealth failed to prove that appellant exercised the requisite dominion and control over the marijuana found in the bedroom closet. At trial, one of the arresting officers testified that he found the marijuana in the closet of “the first bedroom off to the left at the top of the stairs which was later to be [appellant’s] bedroom.” However, the Commonwealth did not establish that appellant occupied the bedroom in question. The Commonwealth did not demonstrate that any books, items of clothing, or other property in the bedroom belonged to appellant, nor did appellant admit to occupying the bedroom. Moreover, the Commonwealth never established that appellant either owned or leased the premises. Finally, the fact that another person was present in the house and had equal access to the place where the contraband was found further negates any proof of appellant’s possession of the marijuana. Commonwealth v. Davis, supra. In sum, the Commonwealth only proved that police officers found marijuana in a bedroom closet in a house at 234 Elm Terrace and that appellant and another adult were present in the house. This evidence does not establish the conscious dominion and control over the marijuana necessary to prove possession. Commonwealth v. Tirpak, supra; Commonwealth v. Sungenis, supra. 3 By failing to present any *153 evidence establishing appellant’s connection with the searched bedroom, the Commonwealth failed to prove that appellant had the requisite possession of the marijuana. Thus, the lower court erred in overruling appellant’s demurrer. Accordingly, I would reverse the judgment of sentence and discharge appellant.

CERCONE and SPAETH, JJ., join in this opinion.

. The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, October 26, 1972, P.L. 1048, No. 263, § 1; 35 P.S. § 780-113(a)(30).

. The officers also found approximately 100 pills in a dresser drawer in the same bedroom. Subsequent chemical analysis revealed that the pills were PCP. The Commonwealth did not charge appellant with possession of this controlled substance.

. In its opinion, the lower court stated that “whether or not any testimony that the bedroom was that of defendant was a conclusion, it remained unrebutted. This was sufficient to support the factual determination that defendant was the person in possession of mari *153 juana.” This rationale incorrectly required appellant to disprove the Commonwealth’s contention that she occupied the searched bedroom. Because the Commonwealth has the burden of proving all elements of an offense beyond a reasonable doubt, the Commonwealth had to prove that appellant possessed the marijuana.