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filed: November 10, 1983.


No. 214 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 81-10-104.


David M. McGlaughlin, State College, for appellant.

Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.

Brosky, Wieand and Cirillo, JJ. Brosky, J., files a concurring opinion.

Author: Wieand

[ 322 Pa. Super. Page 40]

In this appeal from judgment of sentence imposed following the conviction of Ronald Gray for possession of marijuana with intent to deliver,*fn1 Gray contends that the evidence was insufficient to sustain the conviction. In the alternative, he contends that the trial court erred in denying pre-trial motions to suppress evidence and for a writ of habeas corpus. Finding no merit in these contentions, we affirm the judgment of sentence.

"'The test of sufficiency of the evidence -- irrespective of whether it is direct or circumstantial, or both -- is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is 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.'" Commonwealth v. Minoske, 295 Pa. Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983). In making this determination, we evaluate the entire trial record and consider all evidence actually received, whether or not the trial court's rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Barnes, 310 Pa. Super. 480, 483, 456 A.2d 1037, 1038 (1983).

When so viewed, the evidence introduced at trial established that appellant, Ronald Gray, and one Brenda Summers were occupants of a home in a rural area of Lycoming County, Pennsylvania. On January 27, 1981, a search warrant was obtained for their residence and for two vehicles believed to be owned by or in the possession of Gray and

[ 322 Pa. Super. Page 41]

Summers. As noted in the trial court's opinion, "[p]olice officers first approached . . . Gray at approximately noon on January 27, 1981, outside the Federal Courthouse in Williamsport, where Gray was employed. Trooper Lampman of the Pennsylvania State Police advised Gray that he had a search warrant for Gray's house and two vehicles, and asked Gray to accompany the officers when the search warrant was executed. Gray responded to the effect that he was going back inside, and walked away. The officers then went to Gray's residence . . . and met other police officers there who were executing the search warrant at the house. Trooper Carey was directing the search of the premises. When Trooper Carey [had] arrived at the residence at 1:00 p.m., no one was present. Brenda Summers [had] arrived at approximately 1:20 p.m. She [had] demanded a copy of the search warrant, after which the search began. The search of the house yielded a small amount of marijuana, 41 grocery bags which smelled of marijuana, and various items of what Trooper Carey identified as 'drug paraphernalia', including scales, cigarette papers, and a 'hash pipe', among other things. Trooper Carey was permitted to testify as an expert witness with respect to the odor of marijuana and the use of the items of paraphernalia, over [appellant's] objection. The officers also searched the 1966 Impala, which had been placed on cinder blocks in the driveway of the residence. Since no keys to the car were found in the house or on the person of Miss Summers, the officers had to force the trunk open to search the car. In the trunk they found a garbage bag and an apple box, which between them contained twenty 'Zip-lock' plastic bags, each containing marijuana. [Nineteen] of the bags contained approximately one pound of marijuana, the other contained a smaller amount. Trooper Carey was also permitted to testify as an expert concerning the amount of marijuana that one might possess for personal use as opposed to sale and distribution, and the use of a 'stash place' outside of the home for one who was dealing in marijuana. It was his opinion that the amount of marijuana found in the case, combined with the way it was packaged,

[ 322 Pa. Super. Page 42]

    indicated that it was to be sold. The search of the house had also turned up a temporary registration for the 1966 Impala in the driveway which indicated that Ronald Gray was the owner."

Because the marijuana in the trunk of the automobile was not found upon appellant's person, it was incumbent upon the Commonwealth to prove constructive possession. Commonwealth v. Minoske, supra 295 Pa. Super. at 197, 441 A.2d at 417; Commonwealth v. Stokes, 294 Pa. Super. 529, 539, 440 A.2d 591, 596 (1982). "To prove constructive possession, the Commonwealth [was] required to demonstrate that the accused had the power to control the contraband and the intent to exercise that power." Commonwealth v. Jones, 250 Pa. Super. 236, 239, 378 A.2d 914, 915 (1977) (citations omitted). Accord: Commonwealth v. Minoske, supra 295 Pa. Super. at 198, 441 A.2d at 417; Commonwealth v. Thompson, 286 Pa. Super. 31, 34, 428 A.2d 223, 224 (1981); Commonwealth v. Daniels, 281 Pa. Super. 334, 338, 422 A.2d 196, 197-198 (1980). These elements may be inferred from the totality of the circumstances. Commonwealth v. Samuels, 235 Pa. Super. 192, 205, 340 A.2d 880, 886 (1975). Where contraband is found among the defendant's personal effects, in a place normally accessible only to the defendant, the fact finder may properly infer that the defendant had both the power and intent to control the contraband. Commonwealth v. Minoske, supra 295 Pa. Super. at 198, 441 A.2d at 417; Commonwealth v. Jones, supra 250 Pa. Super. at 241, 378 A.2d at 916; Commonwealth v. Samuels, supra 235 Pa. Super. at 206, 340 A.2d at 887.

In the instant case, the Commonwealth's evidence established that appellant and Ms. Summers were the occupants of the house, that twenty bags containing marijuana were found in the locked trunk of a 1966 Impala automobile registered to appellant and resting on blocks in the driveway of the house. Although the fact of possession will lose persuasiveness if persons other than the accused have equal access to the place where the contraband is found, a locked

[ 322 Pa. Super. Page 43]

    automobile trunk is not a place generally accessible to persons other than the owner of the automobile. See and compare: Commonwealth v. Griffin, 230 Pa. Super. 425, 326 A.2d 554 (1974). Moreover, the automobile in this case was inoperable and had been stored on blocks in the driveway of appellant's rural home. Under the totality of the circumstances shown by the Commonwealth, the trier of the facts could properly infer appellant's possession of the marijuana beyond a reasonable doubt. See: Commonwealth v. Minoske, supra; Commonwealth v. Jones, supra; Commonwealth v. Samuels, supra; Commonwealth v. Ferguson, 231 Pa. Super. 327, 331 A.2d 856 (1974).

An intent to deliver may also be inferred from the totality of the circumstances. Commonwealth v. Gill, 490 Pa. 1, 6, 415 A.2d 2, 4 (1980); Commonwealth v. Bundridge, 303 Pa. Super. 267, 272, 449 A.2d 681, 684 (1982); Commonwealth v. Harmes, 255 Pa. Super. 147, 151, 386 A.2d 551, 552 (1978); Commonwealth v. Kishbach, 247 Pa. Super. 557, 559 n. 2, 373 A.2d 118, 119 n. 2 (1976); Commonwealth v. Cubler, 236 Pa. Super. 614, 619, 346 A.2d 814, 817 (1975). Appellant was in possession of an amount in excess of 19 pounds of marijuana, packaged in separate, one pound bags. This was more than three hundred times the 30 grams specified by statute to be considered a "small amount for personal use," 35 P.S. ยง 780-113(a)(31), and was a quantity more consistent with trafficking in drugs than with personal use. The fact finder could permissibly infer an intent to deliver from these circumstances.

Appellant's contention that the affidavit in support of the search warrant failed to show probable cause is also meritless. Application for the warrant was made on January 27, 1981 by Corporal Barto, and the probable cause ...

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