No. 877 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division of Delaware County at No. 57 of 1980.
Raymond Williams, Assistant Public Defender, Media, for appellant.
Jean Marie Cella, Assistant District Attorney, for Commonwealth, appellee.
Spaeth, Montgomery and Lipez, JJ. Montgomery, J., concurs in the result.
[ 301 Pa. Super. Page 268]
This is an appeal from a judgment of sentence for possession of firearms without a license, possession of instruments of crime, and criminal conspiracy. Appellant argues that the evidence was insufficient to support his convictions, and that his arrest was unlawful because the arresting officers arrested him outside of their jurisdiction. We agree that the evidence was insufficient, and therefore do not consider the lawfulness of the arrest.*fn1
The test used to determine the sufficiency of the evidence in a criminal case is whether the evidence admitted at trial was sufficient to prove every element of the crime beyond a reasonable doubt. In making this determination,
[ 301 Pa. Super. Page 269]
we must view the evidence, and all reasonable inferences from the evidence, in the light most favorable to the Commonwealth. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Viewed in this light, the evidence was as follows.
Police Officers Steppke and Gretsky were driving down Route 352 in Delaware County when they spotted a Gremlin automobile containing three men. Appellant was the driver of the automobile, which was owned by his girlfriend, and there was one passenger in the front seat and one in the back. The officers recognized the passenger in the back seat as Clifton Berry, for whom an arrest warrant was outstanding. Following the Gremlin at "about half a car length," they saw Berry pass an "unknown object" to the passenger in the front seat by reaching over the seat between the driver and the passenger. N.T. 6/3/80, 14-16 (Officer Steppke); id. 48 (Officer Gretsky). They then saw the passenger "ben[d] down in a forward motion as to [ sic ; though?] placing something on the floor in front of him." Id. 16 (Steppke). The officers did not motion the Gremlin to pull over, for it did so voluntarily. Id. 23, 34-35. Appellant testified that he did this because he recognized the men following him as police officers, even though their automobile was unmarked. Id. 95. After the Gremlin stopped and the passengers got out, the officers saw a .22 caliber revolver on the front floor, on the passenger side. Officer Steppke testified that this weapon could not have been visible to the driver, id. 24; a "console" separated the driver from the passenger side, id. 23. A search revealed a second weapon, a .38 caliber revolver, underneath the front seat.
Since appellant was not shown to have actual possession of the weapons, the issue is whether the evidence was sufficient to prove his constructive possession of them. To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). At the least, the evidence must show that the defendant knew of the existence of the item. Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817
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(1976); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Armstead, 452 ...