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COMMONWEALTH PENNSYLVANIA v. LAY ANN JONES (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
LAY ANN JONES, APPELLANT



No. 739 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division at No. 6506 October Term, 1971.

COUNSEL

John R. Cook and John J. Dean, Assistant Public Defenders, Pittsburgh, for appellant.

Robert L. Eberhardt and Charles W. Johns, Assistant District Attorneys, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 250 Pa. Super. Page 238]

Appellant was convicted by a jury of possession of narcotic drugs.*fn1 Post-verdict motions were denied, and on March 26, 1976, appellant was sentenced to serve a two year term of probation and pay a $1,000 fine plus the costs of prosecution. Appellant now contends that the evidence was insufficient to prove possession. We disagree and affirm the judgment of sentence imposed by the lower court.

"In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict. Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971); Commonwealth v. Petrisko, 442 Pa. 575,

[ 250 Pa. Super. Page 239275]

A.2d 46 (1971)." Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). When viewed in that light, the evidence and all reasonable inferences arising therefrom establish appellant's guilt beyond a reasonable doubt.

In the instant case, no drugs were found in appellant's actual possession; therefore, the Commonwealth proceeded on the theory of constructive possession. "The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown but where the inference that there has been actual possession is strong. Whitebread and Stevens, To Have and To Have Not, 58 U.Va.L.Rev. 751 (1972)." Commonwealth v. Stephens, 231 Pa. Super. 481, 490-91, 331 A.2d 719, 724 (1974). To prove constructive possession, the Commonwealth is required to demonstrate that the accused had the power to control the contraband and the intent to exercise that power. E.g., Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976); Commonwealth v. Fortune, supra; Commonwealth v. Hicks, 243 Pa. Super. 171, 364 A.2d 505 (1976); Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (1976). This burden may be sustained wholly by circumstantial evidence. Commonwealth v. Chenet, 237 Pa. Super. 226, 352 A.2d 502 (1975).

At trial, the following was established. On May 10, 1971, a confidential informant observed appellant cutting heroin and heard her make a statement to the effect that on the evening of May 11, 1971, she would bring some more heroin to the same location to be cut. Based on this information,*fn2

[ 250 Pa. Super. Page 240]

Detective Ralph McDaniel obtained a warrant to search the house located at 6934 Hamilton Avenue in Homewood. At approximately 10:00 p.m. on May 11, 1971, appellant parked her automobile in front of the house and entered carrying a white shopping bag. A few moments later, she returned to her car, retrieved a smaller green bag, and reentered the house. During this second trip, ...


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