No. 2669 October Term, 1978, Appeal from the Judgment of Sentence, of the Honorable Richard S. Lowe, President Judge, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 1027-78.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., concurred in the result.
[ 286 Pa. Super. Page 33]
Appellant, John Thompson, was charged with unlawful possession of a small amount of marijuana and distribution of a small amount of marijuana but not for sale. 35 P.S. § 780-113(a)(16), (31). The charges arose from an incident which occurred on February 26, 1978 at the State Correctional Institution at Graterford, where appellant was then incarcerated.
On July 17, 1978, appellant was convicted, after a jury trial, of possession of a small amount of marijuana. On September 20, 1978, he was sentenced to 15 to 30 days incarceration, said sentence to commence at the expiration of any being served.
[ 286 Pa. Super. Page 34]
There are two issues presented in this appeal. Appellant contends that "the verdict was against the evidence" and the prosecutor made improper remarks during closing argument. Each will be considered in turn.
SUFFICIENCY OF THE EVIDENCE
In Commonwealth v. Madison, 263 Pa. Super. 206, 209-210, 397 A.2d 818, 820 (1979), the court reiterated the standard employed in reviewing the sufficiency of the evidence. The court stated:
First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence, and finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. 263 Pa. Super. 206, 397 A.2d at 820. (citations omitted)
In narcotics possession cases, the Commonwealth may meet its burden by showing actual, constructive, or joint constructive possession of the contraband. Commonwealth v. Harris, 263 Pa. Super. 110, 397 A.2d 424 (1979). Proof of constructive or joint constructive possession of dangerous drugs requires evidence that the defendant, or in joint constructive possession cases, the defendant and others, had both power to control and the intent to exercise control over the narcotics. A necessary pre-requisite of intent to control is proof that he had knowledge of the existence and location of the narcotics. Commonwealth v. Griffin, 230 Pa. Super. 425, 326 A.2d 554 (1974). While a defendant's mere presence among a group of people, all of whom have equal access to the contraband is not alone, persuasive evidence of constructive possession, the requisite knowledge and intent may be inferred from examination of the totality ...