Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, No. 571, in case of Commonwealth of Pennsylvania v. Martin Valle.
Louis Sherman, for appellant.
Maxine J. Stotland, Assistant District Attorney, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this dissenting opinion.
[ 227 Pa. Super. Page 193]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County by the defendant-appellant, Martin Valle, after conviction by the court below, sitting without a jury, for a violation of the Uniform Firearms Act.
The contention of the appellant is that the evidence was not sufficient to establish his guilt beyond a reasonable doubt of the violation of the Uniform Firearms Act, June 24, 1939, P. L. 872, § 628, as amended, 18 P.S. § 4628(e). The pertinent part of the Act here involved reads: "(e) No person shall carry a firearm in any vehicle . . . without a license therefor. . . ."
The evidence viewed in the light most favorable to the Commonwealth clearly established that the appellant was in possession of the car. The evidence indicates that he was the sole occupant of the car and was seated behind the wheel of the car. He lied to the officer about ownership. When the officer asked him to step from the car, the appellant was able to shut off the motor with the key. As the driver, the appellant was in control and possession of the vehicle including the trunk and as the case in the trunk was unlocked, it is reasonable to infer that he had knowledge of its contents, the weapons, consisting of a loaded .38 revolver and a loaded sawed-off shotgun. Prior to the arrival of the police, the plant foreman had testified that the appellant and two other men had entered the Adams Rug Cleaning Plant after 5 p.m. As he was locking the doors and as the men turned to leave, the foreman noticed a bulge beneath the appellant's shirt. As the result of this information, the officer pulled the rear seat of the car out and retrieved an unlocked attache case from the trunk. Commonwealth v. Festa, 156 Pa. Superior Ct. 329, 338, 40 A.2d 112 (1944). See also, Gaylor v. U. S. 426 F. 2d 233 (9th Cir. 1970). The fact that his co-defendant had the key to the case in the
[ 227 Pa. Super. Page 194]
trunk of the car is immaterial as the case was unlocked and clearly in control of the appellant who was in sole possession and control of the vehicle and the trunk.
The appellant also contends that the search was unlawful. However, he failed to litigate a motion to suppress and thus, waived his right to raise this issue on appeal. Rule 323(b), Pa. R. Crim. P.