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filed: October 31, 1980.


NO. 514 OCTOBER TERM, 1979, NO. 615 OCTOBER TERM, 1979, NO. 616 OCTOBER TERM, 1979, Appeal from Judgments of Sentence of the Court of Common Pleas of Bucks County, Criminal Div., at No. 710 of 1978.


Hillel Lewis, Philadelphia, for appellants.

John J. Kevlock, Assistant District Attorney, Doylestown, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., concurs in the result.

Author: Spaeth

[ 281 Pa. Super. Page 547]

This is a consolidated appeal by three members of the same family, Filomena Luddy and her sons Edmund and Michael. Filomena Luddy, appellant in No. 615, and Edmund Luddy, appellant in No. 616, were convicted of unlawful possession of a controlled substance. Michael Luddy, appellant in No. 514, was convicted of unlawful possession of a controlled substance, possession with intent to manufacture or deliver a controlled substance, and conspiracy. Three issues have been raised: 1) whether the evidence was sufficient to support Filomena Luddy's conviction; 2) whether Edmund Luddy was illegally searched; and 3) whether the warrant pursuant to which the Luddy residence was searched was a valid warrant.


Filomena Luddy was convicted of possession of two small bags of marijuana found in the crisper compartment of the refrigerator in the kitchen of the Luddy residence. The principles by which we must judge the sufficiency of the evidence to sustain her conviction are well settled.

Our Supreme Court has said repeatedly that "illegal possession of narcotic drugs is a crime which 'by its very nature is unique to the individual. By definition, the possessor is the only person who could commit the crime. Guilt by association . . . is unacceptable.'" Commonwealth v. Chenet, 473 Pa. 181, 184-185, 373 A.2d 1107, 1108 (1977), quoting Commonwealth v. Fortune, 456 Pa. 365, 368-69, 318 A.2d 327, 328 (1974), in turn quoting Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). Accordingly, if the Commonwealth is unable to prove the defendant's actual possession of the drugs, it must prove constructive possession.

[ 281 Pa. Super. Page 548]

To prove constructive possession the Commonwealth must prove that the defendant had both the power to control the contraband and the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968).

Constructive possession may be inferred from the totality of the circumstances. Commonwealth v. DeCampli, 243 Pa. Super. 69, 364 A.2d 454 (1976). However, evidence that the defendant was one of a group of persons on the scene where the contraband was found is insufficient to support an inference of constructive possession. This is so because "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." Commonwealth v. Kauffman, 155 Pa. Super. 347, 351, 38 A.2d 425, 427 (1944). "[T]he evidence must establish that the [defendant] had a conscious dominion over the contraband." Commonwealth v. Fortune, supra, 456 Pa. at 368, 318 A.2d at 328.

It is instructive to consider cases in which the evidence was held insufficient to establish such conscious dominion. In Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1974), the police found seven persons, among them the four defendants, in a game room where there was an open jar containing marijuana and an ashtray containing the butts of four marijuana cigarettes; no marijuana was found on the person of any of the defendants, and none of them was seen smoking marijuana cigarettes. The Supreme Court held this evidence insufficient to prove the defendants' constructive possession of marijuana. In Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971), the police found the defendant, another man, and a woman in the woman's apartment, and in a closet in the basement, stolen dresses; the woman had keys to the closet, and there was no evidence that the defendant also had access to the closet. The Supreme Court held this evidence insufficient to prove the defendant's constructive possession of the stolen dresses. In Commonwealth v. Fortune, supra, the police found twenty-one packets

[ 281 Pa. Super. Page 549]

    of heroin on the floor in the doorway between the kitchen and rear shed. No one was in the kitchen or rear shed; three men and a woman were in the living room. The defendant, after the police entry, came downstairs, went through the living room, and entered the kitchen, where an officer was picking up the packets of heroin from the floor. The defendant said, "Don't lock me up." Holding this evidence insufficient, the Supreme Court stated:

There is no evidence that the [defendant] had any knowledge of the presence of the drugs in her home prior to the arrival of the police. The [defendant's] residency in the home does not establish any such knowledge. We cannot assume that a resident of a home, where guests are present, knows of the full contents of the premises. The [defendant's] remark, "Don't lock me up," is at best equivocal as to whether the [defendant] had any prior knowledge that drugs were on the premises. 456 Pa. at 369, 318 A.2d 329.

In Commonwealth v. Chenet, supra, the police waited at the defendant's trailer until the defendant's roommate arrived with his girlfriend. The police then searched the trailer and found a few marijuana seeds on the kitchen floor, marijuana cigarette butts in an ashtray in the living room, and a "baggie" containing marijuana residue in the living room. The police also found some 80 grams of marijuana in a milk delivery box attached to the trailer hitch. They remained at the trailer until the defendant arrived, and found two marijuana cigarettes in the console of the car he was driving; the car belonged to the defendant's attorney. Holding this evidence insufficient, the Supreme Court stated:

The marijuana found in and around the trailer was in the living room, kitchen and outside area immediately adjacent to the trailer. All of these areas were equally accessible to [the defendant's] roommate and his girlfriend. No marijuana was found in [the defendant's] room nor on [the defendant's] person. The marijuana found in the car which ...

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