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COMMONWEALTH v. DUFFY (06/24/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 24, 1975.

COMMONWEALTH
v.
DUFFY, APPELLANT, ET AL.

Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1973, No. 195A, in case of Commonwealth of Pennsylvania v. David Duffy and Walter Hall.

COUNSEL

M. Richard Mellon, with him Samuel J. Reich, Mark L. Glosser, and Cooper, Schwartz, Diamond & Reich, and Mellon-Stitt Associates, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Per Curiam

[ 235 Pa. Super. Page 414]

Appellant contends that the trial court erred in failing to grant appellant's demurrer following the close of the Commonwealth's case.

On October 19, 1972, appellant was a passenger in an automobile which was stopped by a police officer for having inoperative tail lights. The driver of the car was not the registered owner, and upon his failure to produce proper identification he was requested to drive to the police station. Appellant accompanied the driver. At the station, the driver gave permission for the police to search the vehicle. The search revealed a pistol far underneath the passenger's side of the front seat, a mask and gloves in the glove compartment, and burglary tools in the rear seat. Both appellant and the driver were found guilty of possession of burglary tools and violation of the Uniform Firearms Act. Post-trial motions were filed and denied.

Because the contraband was not found on appellant's person, he was properly convicted only if the Commonwealth proved 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). Appellant's convictions must be reversed because the Commonwealth failed to prove that appellant knew of the presence of the contraband, Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973), and thus failed to prove that appellant had the requisite intent to exercise control.*fn*

Judgment of sentence reversed.

Disposition

Judgment of sentence reversed.


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