Appeal from the Sentence Imposed December 17, 1975 in the Court of Common Pleas of Beaver County, Criminal Division at No. 280 of 1975. No. 378 April Term, 1976
Richard H. Galloway, Ackerman & Galloway, Greensburg, for appellant.
Anthony J. Berosh, Beaver, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., dissents.
[ 243 Pa. Super. Page 72]
Appellant contends that the evidence was insufficient to sustain his conviction of possession*fn1 and possession with intent to deliver a controlled substance.*fn2 He also contends that the lower court should have granted his motion for a mistrial after a prosecution witness made repeated references to prior criminal activity by the appellant.*fn3
[ 243 Pa. Super. Page 73]
On February 27, 1975, deputies from the Beaver County Sheriff's Department and Chief Douglas Young of the North Sewickley Township Police Department executed a search warrant for 1355 Brentwood Avenue, North Sewickley Township, Beaver County. The officers seized several bags of marijuana, a small quantity of hashish, various other quantities of marijuana in several parts of the house, a scale, and assorted paraphernalia used in selling and smoking marijuana. Appellant was the sole occupant and tenant of the premises, but was not present when the search warrant was executed.
The case was called for trial on June 20, 1975. Immediately following the selection of the jury, appellant's counsel asked for permission to file an application to suppress. Because appellant's application was clearly late, the court denied appellant's request;*fn4 and the case proceeded to trial.
The jury found appellant guilty of both possession and possession with intent to deliver marijuana. After the court denied appellant's post-verdict motions, it sentenced appellant to serve a term of 2 1/2 to 5 years' imprisonment and to pay a fine of $10,000 on the count charging possession with intent to deliver and to serve a concurrent term of 1 1/2 to 3 years' imprisonment and to pay a $5,000 fine on the possession count.
[ 243 Pa. Super. Page 74]
I. Sufficiency of the Evidence
The appellant contends that, because other persons have been in his apartment at various times, the evidence was not sufficient to show that he was in possession of the contraband seized from his house.
We are required to evaluate the sufficiency of the evidence, after a verdict of guilty, in the light most favorable to the Commonwealth, i. e., we must accept as true all of the evidence, direct and circumstantial, and all reasonable inferences arising from the evidence, upon which the factfinder could properly have based the verdict. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971); Commonwealth v. Maurer, 240 Pa. Super. 471, 361 A.2d 356 (Filed April 22, 1976).
Our courts have repeatedly held that the illegal possession of drugs is a crime which is unique to the individual and which, by definition, can only be committed by the possessor. Guilt by association is unacceptable. Commonwealth v. Fortune, supra; Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971); Commonwealth v. Maurer, supra; Commonwealth v. Updegrove, 223 Pa. Super. 7, 296 A.2d 854 (1972). Absent literal possession, the Commonwealth may sustain its burden by showing constructive possession, which requires that the Commonwealth prove that the accused had the power to control the contraband and the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); Commonwealth v. Maurer, supra; Commonwealth v. Updegrove, supra. "Undoubtedly, the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered: 9 Wigmore on Evidence (3rd ed.) § 2513. Cf. Com. v. Ault, 10 Pa. Super. 651." Commonwealth v. Davis, 444 Pa. 11, 16,
[ 243 Pa. Super. Page 75280]
A.2d 119, 121 (1971), quoting Commonwealth v. Kauffman, 155 Pa. Super. 347, 351, 38 A.2d 425, 427 (1944). See also Commonwealth v. Schuloff, 218 Pa. Super. 209, 275 A.2d 835 (1971). It is equally true, however, that constructive possession may properly be inferred from the totality of circumstances which attend each case. Exclusive control of a dwelling may be inferred from proof that the accused is the sole occupant or tenant of the place in which contraband is found. See Commonwealth v. Davis, supra; Commonwealth v. Maurer, supra. An accused may be charged with the knowledge of the location of the contraband, which is essential to the proof of an intent to exercise control, if the contraband is found in places peculiarly within the control of the accused. Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973); Commonwealth v. Maurer, supra; Commonwealth v. Ferguson, 231 Pa. Super. 327, 331 A.2d 856 (1974). Compare Commonwealth v. Hannan, 229 Pa. Super. 540, 331 A.2d 503 (1974) with Commonwealth v. Gladden, 226 Pa. Super. 13, 311 A.2d 711 (1973), and Commonwealth v. Walley, 225 Pa. Super. 465, 310 A.2d 381 ...