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COMMONWEALTH PENNSYLVANIA v. LARRY BANAHASKY (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY BANAHASKY, APPELLANT



No. 556 April Term 1976, Appeal from Judgment of Sentence of Judge Gladden, of the Court of Common Pleas of Washington County, Criminal Div., dated Feb. 6, 1976, filed at No. 345 of 1973.

COUNSEL

Patrick J. Rega, Charleroi, for appellant.

Robert N. Clarke, Assistant District Attorney, Washington, and Jess D. Costa, District Attorney, Bentleyville, on brief for Commonwealth, appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Jacobs and Price, JJ., dissent.

Author: Spaeth

[ 250 Pa. Super. Page 498]

Appellant was convicted by a judge sitting without a jury of possession of a small amount of marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Post-trial motions were denied, and appellant was fined $100.00 and sentenced to a 30 day suspended sentence and probation of six months. Appellant contends here that he should be discharged because the evidence was insufficient to support a conviction, or in the alternative that he should be awarded a new trial because the evidence was obtained in violation of the 4th Amendment. We hold that the evidence was not insufficient but was obtained in violation of the 4th Amendment.

1

On May 10, 1973, an officer of the Union Township Police Department obtained a warrant to search the house of Mrs. Stella Banahasky, appellant's mother. The reasons given for the issuance of the warrant were the prior arrest of one Jerry Drake for possession of four bags of marijuana, and information from Drake that he was staying at Mrs. Banahasky's house. (N.T. Suppression Hearing 4) Two officers went with the warrant to the Banahasky house, and, with

[ 250 Pa. Super. Page 499]

Mrs. Banahasky and appellant present, found a rolled cigarette and a plastic bag on the floor of Drake's room. In appellant's room the officers found a bag containing Drake's clothing and two plastic bags filled with smaller bags containing marijuana, and a jacket hanging on the door, which appellant identified as his. In the pocket of the jacket the officers found seeds and residue of marijuana. Appellant's conviction was for the possession of the seeds and residue.

To determine whether evidence was sufficient, it is necessary to accept as true all of the evidence upon which the trier of facts could properly have based the verdict. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). By this test the evidence against appellant was sufficient.

Appellant correctly asserts that where others have equal access to contraband, evidence of defendant's mere opportunity to control the contraband is insufficient to sustain a conviction of its possession. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 870 (1971). To prove possession it is necessary to prove that the defendant had both the power and the intent to control the contraband. Commonwealth v. Townsend, 428 Pa. 281, 284, 237 A.2d 192, 194 (1968); Commonwealth v. Davis, supra. To prove intent it is necessary to prove that the defendant knew where the contraband was. This knowledge may be inferred from the evidence of the surrounding circumstances. Commonwealth v. Whitman, 199 Pa. Super. 631, 186 A.2d 632 (1962). Here the evidence that the marijuana was found in appellant's jacket; in appellant's room, was sufficient to show that appellant had the power to control the marijuana, and also sufficient to support an inference that he knew that the marijuana was in his jacket and intended to exercise control over it.

It is true that appellant and his mother both testified that the jacket had been worn by Drake the night before. However, this testimony simply created a question of credibility for the trial judge. Perhaps, as appellant argues, it ...


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