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decided: October 20, 1978.


No. 1076 October Term 1977, Appeal from Judgment of Sentence of Moss, J., dated February 8, 1977, in the Court of Common Pleas of Montgomery County, Pa., No. 2982 - 76., Crim.


Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting statement, in which Van der Voort, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 259 Pa. Super. Page 207]

Appellant, an inmate at the State Correctional Institution at Graterford, was convicted by a judge sitting without a jury of having an implement for escape in violation of the Act of Dec. 10, 1974, P.L. 910, No. 300, 18 Pa.C.S. 5122(a)(3). On this appeal he contends that the evidence was insufficient to sustain the conviction, and that his trial counsel was ineffective for failing to pursue a claim under Pa.R.Crim.P. 1100.


The Commonwealth's evidence was to the following effect. On July 8, 1976, Sergeant Brennan was patroling C-block at Graterford, when he observed appellant engaged in a discussion with a prison guard in front of appellant's cell, Cell No. 233. Appellant was taken to another cell, and Cell No. 233 was searched. A black iron pipe, a file, and a piece of cell bar were found on the floor behind the bed. N.T. 13-15. After the search, Security Captain Spaid observed that all the upper flat bars had been removed from the cell; it was his opinion that the piece of bar found on the floor of the cell was one of the bars that had been removed. N.T. 50-51. Appellant was the sole occupant of the cell, and had been since April 28; appellant was out of the cell from May 20 to 27, but it was double-locked during that time. N.T. 20-22, 42-43. The windows of the cells were checked weekly, and before a new inmate was put in a cell, the cell was searched. N.T. 31.

The defense presented two witnesses, who were inmates at Graterford. They testified that inmates were always entering each other's cells, and in fact complained that items were always being stolen from the cells on C-block. N.T. 69, 81. (The sergeant's testimony confirmed that during the day the cells were open and inmates could enter other cells. N.T. 23-24.) One of the inmates also testified that he was the occupant of Cell No. 233 before appellant, and that he observed then that cell bars were missing from the windows of the cell. N.T. 66.

[ 259 Pa. Super. Page 208]

Appellant contends that since the implements for escape -- the pipe, file, and piece of cell bar -- were not found on his person, the Commonwealth had to prove his constructive possession of them. If this were so, a question would indeed be presented whether the evidence was sufficient to show constructive possession. In Commonwealth v. De Campli, 243 Pa. Super. 69, 74, 364 A.2d 454, 456-57 (1976), we said, in examining a charge of constructive possession of drugs:

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.) ยง 2513. Cf. Com. v. Ault, 10 Pa. Super. 651." Commonwealth v. Davis, 444 Pa. 11, 16, 280 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 ...

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