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filed: June 11, 1982.


Nos. 668 & 669 Philadelphia Term, 1981, Appeals from the Judgments of Sentence of the Court of Common Pleas of Delaware County, Trial Division, at Nos. 4594 and 4595 of 1979.


John Rogers Carroll, Philadelphia, for appellants.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Beck, Watkins and Hoffman, JJ. Watkins, J., files a dissenting opinion.

Author: Hoffman

[ 302 Pa. Super. Page 97]

Appellants contend that the evidence was insufficient to support their convictions. We agree and, accordingly, reverse the judgments of sentence and order appellants discharged.

On October 27, 1979, the Pennsylvania State Police, during a search of appellants' home pursuant to a warrant, discovered four bags containing a white powder in a tan Tupperware container on the shelf in the clothes closet of appellants' master bedroom. Also in the bedroom was a book entitled "The Pressures of Cocaine," a Daisy Seal-a-Meal and an eavesdropping detector. Elsewhere in the house, police found $7,000 and two one-pound containers of Manitol, a commonly used cutting agent for cocaine. The white powder was subsequently determined to contain varying proportions of cocaine. Appellants' pre-trial motions to suppress the evidence seized during the search were denied, and following a non-jury trial, appellant Carl Macolino was found guilty of possession with intent to deliver a controlled substance and criminal conspiracy, while appellant Gae Macolino was found guilty only of criminal conspiracy. Post-trial

[ 302 Pa. Super. Page 98]

    motions were denied and sentence imposed, prompting this appeal.

Appellants contend that the evidence is insufficient to support their convictions for criminal conspiracy. We agree. "The test of the sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt." Commonwealth v. Eckert, 244 Pa. Superior Ct. 424, 428, 368 A.2d 794, 795, 796 (1976). "In order for a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy." Commonwealth v. Lewis, 276 Pa. Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). Although a conspiracy may be inferentially established by the "relation, conduct or circumstances of the parties," the evidence must be sufficient to overcome the presumption of innocence and satisfy the fact-finder beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa. Superior Ct. 494, 500, 402 A.2d 546, 549 (1979). The only evidence presented by the Commonwealth consisted of the officers' testimony that they found the drugs on appellants' closet shelf. There is no evidence of an agreement "to accomplish a criminal objective." In fact, there is no evidence that either or both appellants were aware of the drugs' presence. The only circumstance which even suggests a conspiracy is appellants' marital relationship. However, such evidence, standing alone, is clearly insufficient to support a conspiracy conviction. Commonwealth v. Anderson, supra. Accordingly, we reverse appellants' judgments of sentence for conspiracy.

Appellant Carl Macolino contends also that the evidence was insufficient to support his conviction for possession of a controlled substance with intent to deliver. We agree. "The 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

[ 302 Pa. Super. Page 99]

    the crime. Guilt by association . . . is unacceptable.'" Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327, 328 (1974) quoting Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). If the Commonwealth is unable to show actual possession by the defendant, it must then prove constructive possession, i.e., "the power to control the contraband and the intent to exercise that control." Commonwealth v. Luddy, 281 Pa. Superior Ct. 540, 547, 422 A.2d 601, 604 (1980). Although constructive possession may be inferred from the totality of the circumstances, Commonwealth v. DeCampli, 243 Pa. Superior Ct. 69, 364 A.2d 454 (1976), mere presence, Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), or residence at the scene, Commonwealth v. Fortune, supra; Commonwealth v. Luddy, supra, is insufficient to prove a conscious dominion over the contraband. "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." Commonwealth v. Davis, supra, 444 Pa. at 16, 280 A.2d at 121; Commonwealth v. Luddy, supra, 281 Pa. Superior Ct. at 547, 422 A.2d at 605. The only evidence of possession was the officers' testimony that the contraband was found on a closet shelf in appellants' bedroom. Although the evidence was sufficient to show that both ...

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