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COMMONWEALTH v. TOWNSEND (01/09/68)

decided: January 9, 1968.

COMMONWEALTH
v.
TOWNSEND, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, Nos. 467 and 468, affirming judgment of Court of Quarter Sessions of Philadelphia County, April T., 1966, Nos. 593 and 596, in case of Commonwealth of Pennsylvania v. Frank S. Townsend.

COUNSEL

Lawrence Goldberg, for appellant.

Welsh S. White, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones dissents. Concurring and Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 428 Pa. Page 283]

Appellant Frank S. Townsend was convicted by a judge sitting without a jury of two offenses under the Uniform Firearms Act, Act of June 24, 1939, P. L. 872, § 628, as amended, 18 P.S. § 4628(d) and (e) -- possession of a firearm after a conviction of a crime of violence and possession of a firearm without a license. Concurrent sentences of one and one-half to three years were imposed and these sentences were affirmed by an equally divided Superior Court. See Commonwealth v. Townsend, 209 Pa. Superior Ct. 406, 228 A.2d 206 (1967). We granted allocatur.

There is no record evidence that Townsend had been convicted of a crime of violence.*fn1 That conviction must therefore be reversed. See State v. Tully, 198 Wash. 605, 89 P. 2d 517 (1939). Townsend also contends that the evidence produced by the Commonwealth is insufficient to sustain his possession without a license conviction. We agree.

[ 428 Pa. Page 284]

The Superior Court dissenters carefully summarized the Commonwealth's evidence (Commonwealth v. Townsend, supra at 407-08, 228 A.2d at 207): "On March 25, 1965, at approximately 8:45 p.m., police officers William Carlin and Fred Bacino were on duty in a patrol car near the intersection of Allegheny Avenue and Fox Street in Philadelphia. Carlin, the driver, observed a Rambler automobile about one car length in front of them which had stopped to let out one of its occupants, later identified as William A. Miller. As Miller was getting out of the right side of the car, Bacino saw a weapon fall to the ground and said to Carlin, 'That man dropped a gun, let us check them.' Miller picked up the gun and threw it on the back seat of the car. The officers approached on foot -- Bacino on the right side and Carlin on the left. Bacino asked Miller, 'What did you throw in the back seat?' Miller did not reply. Bacino looked into the back seat and saw a .32 automatic pistol.

"Carlin ordered the occupants -- Joseph L. Giambi [the driver] and appellant -- out of the car. They were searched, but no weapons were found.

"Bacino later noticed a second gun -- a .22 Derringer -- partially concealed under the front seat on the passenger side. After securing a warrant for the car, a subsequent search revealed a shotgun under the hood. Appellant was tried jointly with Giambi and neither testified nor presented evidence on their behalf."

No weapons having been found on appellant's person, the Commonwealth premised its case upon a theory of joint possession. See, e.g., Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 186 A.2d 632 (1962). Two elements are essential to a finding of joint possession: the power of control over the weapon and the intention to exercise this control. See, e.g., Commonwealth v. ...


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