Appeal from order of Court of Common Pleas of Beaver County, No. 398 of 1973, in case of Commonwealth of Pennsylvania v. Richard P. Chenet.
John Alan Havey, for appellant.
No appearance entered nor brief submitted for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this opinion.
[ 237 Pa. Super. Page 228]
The appellant, Richard P. Chenet, was charged with possession of marijuana and was convicted by a jury. He subsequently filed a motion for a new trial alleging trial errors and a motion in arrest of judgment arguing that the evidence was insufficient to sustain the verdict. The court granted the motion for a new trial because of improper comments made by the prosecutor; but refused the motion in arrest of judgment. The defendant has appealed from the refusal of the arrest of judgment.*fn1
[ 237 Pa. Super. Page 229]
The facts reveal that deputy sheriffs in Beaver County received information from a confidential informant that the appellant had a large quantity of marijuana in his trailer located in a trailer camp in Raccoon Township. Using this information the sheriffs obtained a search warrant.*fn2 The sheriffs then proceeded to the trailer to execute the warrant. Upon arriving, the sheriffs found no one present and waited until the return of appellant's roommate at which time they proceeded to search the dwelling. They found a small quantity of marijuana seeds on the kitchen floor, a bag containing marijuana residue in a trash barrel in the trailer and four marijuana cigarette butts in the living room. In a metal milk box sitting on the trailer hitch outside the trailer the sheriffs found four bags each containing 20 grams of marijuana.
The sheriffs then waited for the appellant to return. Several hours later the appellant drove up alone in a sports car belonging to his attorney. Appellant was placed under arrest. The sheriffs thereafter obtained another warrant to search the car, and the subsequent search revealed two marijuana cigarettes in the unlocked compartment between the two front seats.
"In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising
[ 237 Pa. Super. Page 230]
therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove." Commonwealth v. Ingram, 440 Pa. 239, 249, 270 A.2d 190, 195 (1970), quoting Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108, 111 (1970) (emphasis original).
Because the marijuana was not found on the person of appellant, constructive possession must be established by the Commonwealth. Commonwealth v. Samuels, 235 Pa. Superior Ct. 192, 203, 340 A.2d 880, 886 (1975). Also there was evidence that while appellant rented the trailer, he shared its occupancy with another individual. Under these circumstances we must recognize that "the fact of possession loses persuasiveness if persons other than the accused had equal access to the place in which the contraband was found." Commonwealth v. Ferguson, 231 Pa. Superior Ct. 327, 333, 331 A.2d 856, 860 (1974). When, as in the present case, another individual has equal access to the area where the drugs are found, the Commonwealth may obtain a conviction if it can prove joint constructive possession. See Commonwealth v. Carter, 230 Pa. Superior Ct. 236, 326 A.2d 480 (1974); Commonwealth v. Walley, 225 Pa. Superior Ct. 465, 310 A.2d 381, allocatur refused, 225 Pa. Superior Ct. xlii (1973). To establish joint constructive possession the Commonwealth must show ...