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COMMONWEALTH v. CASH (04/22/76)

decided: April 22, 1976.

COMMONWEALTH, APPELLANT,
v.
CASH



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1974, No. 4420A, in case of Commonwealth of Pennsylvania v. Ruth Cash.

COUNSEL

Charles W. Johns, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.

Michael R. Kelly, with him Morris F. Cohen, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Watkins, P.j., and Hoffman and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 240 Pa. Super. Page 124]

In this action the Commonwealth appeals from an Order of the lower court granting a post-trial motion in

[ 240 Pa. Super. Page 125]

    arrest of judgment. Such motion was filed by the appellee, Ruth Cash, following her conviction by a jury, on charges of possession and possession with intent to deliver a controlled substance. The Commonwealth contends that the court erred in arresting judgment.

In an appeal by the Commonwealth from the grant of a motion in arrest of judgment, following a finding of guilt on the charges by a jury, we must determine whether the evidence offered by the Commonwealth, at trial, was sufficient to support the jury's verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). We review the evidence in these circumstances in a light most favorable to the Commonwealth. Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421 (1973). To sustain the lower court, we must find that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict, it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged. Commonwealth v. Williams, 455 Pa. 539, 547, 316 A.2d 888 (1974).

When the defendant is charged with illegal possession of contraband, the evidence must show that appellant had a conscious dominion over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). "Guilt by association . . . is unacceptable." Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327 (1974); Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). We must be mindful that mere presence of one person, among a group at a scene of contraband, is not a strong factor indicative of guilt. (Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971)); Commonwealth v. Reece, supra. Also, access by others to the place where the prohibited substance or property was found is a factor for consideration. However, in each case involving charges of possession of narcotic drugs, we must examine all facts carefully, since the crime charged

[ 240 Pa. Super. Page 126]

". . . by its very nature is unique to the individual." Commonwealth v. Ferguson, 231 Pa. Superior Ct. 327, 331 A.2d 856 (1974); Commonwealth v. Hannan, 229 Pa. Superior Ct. 540, 331 A.2d 503 (1974). In "constructive possession" cases the critical determination of dominion is whether the person charged had the power and intent to exercise control over the contraband. Commonwealth v. Carter, 230 Pa. Superior Ct. 236, 326 A.2d 480 (1974); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Griffin, 230 Pa. Superior Ct. 425, 326 A.2d 554 (1974). Evaluating all of these considerations in the instant case, we conclude that the jury verdict was supported by sufficient evidence of guilt in the instant case and it was error to grant the appellee's motion in arrest of judgment.

Our review of the record shows a coalescence of many factors to evidence the guilt of the appellee. On April 10, 1974, officers of the Pittsburgh Police, possessed of a search warrant, gained entry to the one-bedroom apartment of Calvin Cash. The appellee was alone in the premises. During the ensuing search the appellee became hysterical and had a physical confrontation with the police; during this time she also made an unsuccessful attempt to flee. During the course of the search, the police discovered a large quantity*fn1 of marijuana and heroin in a bedroom closet (the only closet in the apartment) together with assorted paraphernalia frequently associated with the illicit sale of drugs.*fn2 In the same closet, and next to the ...


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