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COMMONWEALTH v. CARTER (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
CARTER, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, Nos. 902, 903 and 904, in case of Commonwealth of Pennsylvania v. William E. Carter.

COUNSEL

Anthony J. Cavuto, for appellant.

Douglas B. Richardson, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Jacobs and Van der Voort, JJ., join in this opinion.

Author: Hoffman

[ 230 Pa. Super. Page 237]

Appellant contends that the evidence presented at trial is insufficient to sustain his convictions for possession

[ 230 Pa. Super. Page 238]

    of narcotic drugs, possession of dangerous drugs and sale of dangerous drugs.

On February 29, 1972, Officer Wesley Servance of the Philadelphia Police Department went to the premises at 2236 N. 18th Street with a search warrant. The building at this address consists of two stories, each containing a separate apartment. According to the testimony of Officer Servance, he rang the door bell to the second floor apartment. He testified that while he was waiting for a response, four youths joined him. At that point, Erskine Thomas, appellant's co-defendant at trial, answered the door and spoke with the four youths. Thomas agreed to meet the boys at a later time. Thomas then asked Officer Servance if he had the money and the officer answered affirmatively. Thomas went upstairs and returned with two green pills. Officer Servance handed Thomas a ten-dollar bill, and Mr. Thomas again entered the apartment in order to get change. When Thomas returned, Officer Servance identified himself and presented the search warrant. Thomas attempted to shut the door and prevent Servance from entering.

Officer Berry had been waiting outside during Officer Servance's conversation with Thomas. After observing Officer Servance struggle with Thomas and hearing Thomas yell to "Billy" to "get rid of the stuff," he forced the door open and ran upstairs. Officer Berry testified that he stopped appellant as he was entering the kitchen. A search of the kitchen revealed drugs contained inside a coffeepot which had a plastic container over it.

When testing the sufficiency of the evidence, we must review the testimony in the light most favorable to the verdict winner, Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973), and must accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence,

[ 230 Pa. Super. Page 239]

    upon which the trier of facts could properly have based the verdict. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). When viewed in this posture, the evidence was sufficient to establish appellant's guilt on the charges of possession, but not on the charge of illegal sale.

Since no drugs were found on appellant's person, the Commonwealth had to prove joint constructive possession. Two elements are essential to such a finding: the power of control and the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). Although it was never conclusively shown that appellant was a resident of the apartment, power of control can be inferred from the fact that he and the co-defendant were the only two people present during the arrests and subsequent search. While presence in the vicinity of illegal drugs by itself does not prove the crime of possession, Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), knowledge of the presence of contraband and intent to exercise control can be inferred from the totality of the circumstances, of which presence is a factor. Commonwealth v. Fortune, supra. In this case, the police officer stopped the appellant just as he was about to enter the room in which the illegal drugs were found. This occurred immediately after appellant's co-defendant had shouted to "get rid of the stuff." Since the contraband was hidden in that room ...


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