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COMMONWEALTH PENNSYLVANIA v. VINCENT N. BURKLEY (04/02/82)

filed: April 2, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
VINCENT N. BURKLEY, APPELLANT



No. 1119 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7900776A.

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Montgomery, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 297 Pa. Super. Page 401]

Appellant contends that the evidence was insufficient to establish that he "possessed" a sharpened screwdriver that had been discovered during a search of his prison cell. For the reasons that follow, we reverse the judgment of sentence for possession of a prohibited offensive weapon, and affirm that for possession of a weapon or implement for escape.

It is well-settled that

[ 297 Pa. Super. Page 402]

[i]n 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. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974) (emphasis in original). So viewed, the facts are as follows: On December 14, 1978, two correctional officers discovered a sharpened screwdriver hidden within appellant's mattress during a "shakedown search" of his prison cell. All sixty-four cells in appellant's block were usually left unlocked during the day, and inmates were allowed to travel back and forth to recreational areas, leaving their cells unattended. Throughout the day, selected inmates clean the area, and collect and distribute the laundry. Appellant's cell contained a television set, prompting occasional visits from other inmates.

Appellant argues first that section 5122(a)(2) of the Crimes Code requires proof of "possession." We disagree. "Possession" is defined under the Crimes Code as "an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 301(c). "Our cases have construed this 'knowledge' or 'awareness' element as the exercise of conscious dominion or control over the [contraband]." Commonwealth v. Rambo, 488 Pa. 334, 337, 412 A.2d 535 (1980). Section 5122(a)(2), however, does not require a showing of "possession." Rather, it permits a conviction upon a showing of "control" -- a less stringent standard. "An inmate commits a misdemeanor of the first degree if he unlawfully procures, makes, or otherwise provides himself with, or unlawfully has in his possession, or under his control, any weapon." 18 Pa.C.S.A. § 5122(a)(2) (emphasis added). In Commonwealth v. Crowley, 259 Pa. Superior Ct. 204,

[ 297 Pa. Super. Page 403393]

A.2d 789 (1978), under strikingly similar circumstances, we held ...


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