decided: December 28, 1977.
COMMONWEALTH OF PENNSYLVANIA
EARL M. RUTHERFORD, JR., APPELLANT
No. 523 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal, imposed October 31, 1975 at No. 381 of 1970.
Richard R. Fink, First Assistant Public Defender, Doylestown, with him Eugene A. Kestenbaum, Assistant Public Defender, Doylestown, for appellant.
Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Jacobs, J., joins. Spaeth, J., files a concurring and dissenting opinion in which Hoffman, J., joins.
[ 252 Pa. Super. Page 349]
On January 27, 1972, following a trial before a judge without a jury, appellant was found guilty of carrying a firearm without a license*fn1 and turning off lights to avoid
[ 252 Pa. Super. Page 350]
identification.*fn2 Post-verdict motions were filed February 8, 1972 and denied by a court en banc on March 16, 1973. On October 31, 1975, appellant was sentenced on both counts to imprisonment for a term of not less than three months nor more than six months, said sentence to run concurrently with any other sentence having priority in time.
Appellant's first contention is that his sentence must be vacated due to an unexplained delay of over two years and seven months between denial of his post-trial motions and his sentencing. However, appellant did not bring this matter to the attention of the lower court at the time of sentencing,*fn3 and the claim may thus be deemed waived. See Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974).
Even were we to reach appellant's sentencing claim on the merits, the result would be the same. Appellant maintains that two cases from this court require that the sentence herein be vacated, Commonwealth v. Giovengo, 188 Pa. Super. 220, 146 A.2d 629 (1958) and Commonwealth v. Stewart, 221 Pa. Super. 1, 289 A.2d 126 (1972). In Giovengo, the appellant pled guilty to charges in Franklin County, sentence was deferred and he was turned over to Allegheny County officials to face other charges. The appellant was not returned for sentencing on the Franklin County guilty pleas until three years later. In response to the appellant's assertion that this delay deprived him of his right to a speedy trial and due process of law, the court held "that in Pennsylvania a sentence may be suspended (footnote omitted) or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced, provided proper reasons are present to justify the delay."
[ 252 Pa. Super. Page 351]
from the handle were missing. Several pieces of plastic which fit the handle of the pistol were found in appellant's lap.
Appellant asserts that under Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968) and a number of subsequent cases, the Commonwealth's case was defective in that it did not establish his intent to exercise control over the pistol. Because the weapon was not found on appellant's person the Commonwealth had to prove constructive possession, the requisite elements of which are "'. . . the power of control over the weapon and the intention to exercise this control.'" Commonwealth v. Armstead, 452 Pa. 49, 51, 305 A.2d 1, 2 (1973), quoting Commonwealth v. Townsend, supra 428 Pa. at 284, 237 A.2d at 194. It is evident that appellant had the ability to control the weapon. Upon review of the cases cited by appellant and comparison of the facts therein with the evidence produced in the instant case, we conclude that the evidence was sufficient to establish, albeit circumstantially, appellant's intent to exercise control over the gun.
In Commonwealth v. Townsend, supra, officers saw a gun fall from an automobile as a passenger exited. The passenger retrieved the gun and threw it on the back seat. The police ordered the two additional occupants, the driver and Townsend, out of the car. A subsequent search of the automobile revealed a .22 caliber derringer partially concealed under the passenger side of the front seat and a shotgun hidden under the hood. At trial, the testifying police officer was unable to state where Townsend had been seated in the car. The Commonwealth was thus unable to establish Townsend's proximity to the hidden derringer and had to "rely on its contention that mere presence in a vehicle containing two weapons is sufficient to sustain a finding of guilt." Commonwealth v. Townsend, supra 428 Pa. at 285, 237 A.2d at 194. The court, finding nothing to indicate Townsend's knowledge of the weapons other than his presence in the car, held the evidence insufficient to prove possession.
[ 252 Pa. Super. Page 354]
in and around the car, the officer moved in. When the upper section of the front passenger's seat was pushed forward to allow one of the persons in the back seat to exit, the officer saw a corncob pipe with an aluminum foil lined bowl in the space behind the seat. Laboratory analysis revealed marijuana residue in the pipe. No marijuana was found on the appellant's person or elsewhere in the car. The supreme court held that the presence of the pipe behind the passenger seat did not indicate the appellant-driver's knowledge of or intent to control the pipe, and that the appellant's status as driver-owner of the car did not supply the missing element of proof.
In the instant case, immediately following the Chevrolet's crash into the loading dock, police observed a gun in the left-hand front corner of the car's floor, next to appellant's left foot. The broken plastic grips to the gun were found in appellant's lap. Appellant alleged that the gun was kept beneath the front seat by the owner of the car and that he had no knowledge of its presence prior to the accident. No explanation was offered for the post-impact location of the gun grips.
"[W]hile the Commonwealth must establish every essential element of a crime beyond a reasonable doubt, this burden may be sustained by means of wholly circumstantial evidence." Commonwealth v. Stanley, 453 Pa. 467, 469, 309 A.2d 408, 410 (1973). The evidence in this case, while circumstantial, was certainly stronger than in the cases discussed above. The pistol was not discovered in a place of concealment, but was rather observed in plain view in extremely close proximity to appellant and in a position clearly within appellant's field of vision. The broken grips, which had been part of the weapon, were actually found on appellant's person. "The law is well settled that it is the exclusive province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded their testimony." Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). As was its right, the fact finder clearly chose to disbelieve appellant's assertion that the gun was beneath the
[ 252 Pa. Super. Page 356]
seat and its presence unknown to him before the accident. From the presence of the pistol grips in appellant's lap, the fact finder could properly have inferred that the gun was located above the level of the seat and on or close to appellant's person prior to the impact. This inference would strongly indicate appellant's knowledge of the gun's presence and his intent to exercise control over it.
"The test of sufficiency [of the evidence] is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the fact finder could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged." Commonwealth v. Ford, 472 Pa. 542, 544, 372 A.2d 821, 822 (1977).
The evidence herein was sufficient to establish beyond a reasonable doubt the elements of the offense of carrying an unlicensed firearm.
The judgment of sentence of the lower court is affirmed.
HOFFMAN, Judge, concurring:
I concur in the result reached by the Majority. I agree with the Majority that appellant waived his assertion that his sentence should be vacated due to an unexplained, prolonged delay before sentencing. Appellant failed to raise this claim before the lower court. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975). Accordingly, I would not reach the merits of appellant's claim and do not join in the Majority's discussion of this issue.
SPAETH, Judge, concurring and dissenting:
I agree with Judge HOFFMAN that since appellant has waived his speedy sentencing claim by failing to raise it
[ 252 Pa. Super. Page 357]
before the lower court, this court should not attempt to resolve that claim, which involves a complex question of constitutional law.
Furthermore, I disagree with the majority's resolution of appellant's sufficiency of the evidence claim. In my opinion, when a car going 40 miles per hour smashes into a concrete loading dock, the post-crash position of any light item within it cannot be considered indicative of anything at all. In Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976), it was held that a prerequisite for proving possession of contraband in a car is proof that the purported possessor knew that the contraband was there. Without detailed evidence about the path that the car took -- whether it may have swerved before the crash, the angles at which it hit the pier and perhaps ricocheted off it -- and evidence about trajectories under such circumstances, I for one cannot say that the positions of a gun near the unconscious driver's foot and of the pieces of the gun's handle in his lap are sufficient proof that he had knowledge of, or intent to control the weapon.