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decided: December 27, 1983.


No. 104 E.D. Appeal Dkt. 1982, Appeal from the Judgment of the Superior Court of Pennsylvania, filed June 11, 1982, Nos. 668 & 669, Philadelphia, 1981, reversing Judgment of Sentence of the Court of Common Pleas of Delaware County entered February 23, 1981, Nos. 4594 & 4595 of 1979, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., concurs in the result.

Author: Mcdermott

[ 503 Pa. Page 204]


The appellee, Carl Macolino, was found guilty of possession of a controlled substance with intent to deliver,*fn1 and criminal conspiracy,*fn2 following a non-jury trial. At the same trial, appellee's wife, Gae, was found guilty of criminal conspiracy. Carl Macolino, following the denial of post-trial motions, was sentenced to a prison term of eleven-and-one-half months to twenty-three months on the possession offense, and a consecutive sentence of three years probation on the conspiracy charge. Gae Macolino was sentenced to two years probation on the conspiracy charge.

The sole issue confronting this Court is whether the Superior Court erred in reversing the trial court's judgment of sentence against Carl Macolino. The Superior Court, 302 Pa. Super. 96, 448 A.2d 543, held that the Commonwealth failed to produce sufficient evidence to establish that appellee was in constructive possession of the controlled substance, since his wife could also have had possession of the drug.*fn3 We find that the Superior Court did err, and we reverse.

The underlying facts of this case are as follows: Armed with a search warrant, police searched the appellee's home on October 29, 1979. In the first floor dining room, the

[ 503 Pa. Page 205]

    police seized various items linking Carl and Gae Macolino together as a couple, including bank checks, deposit slips, a bank passbook in both their names and photographs of the couple. Large sums of money were also seized. In the master bedroom which was equipped with a double bed, there was a clothes closet with the clothing of both a man and woman. (R. 39). On the top shelf of the closet police seized two plastic bags containing a white powder, testified at trial to be thirty-percent cocaine. Two smaller plastic packages were found in the closet as well, containing what was testified to be two percent cocaine, along with a Tupperware container holding four empty plastic bags. Copies of "The Pleasures of Cocaine" and "The Pill Book" were seized from a bookshelf in the bedroom. On top of the bedroom dresser, the officers seized a pocket memo book, containing pages of numbers, a machine called a "Daisy Seal-a-Meal", an appliance used in the drug trade to seal packages of cocaine in order to prevent seepage of the drug, and a device used to detect eavesdropping equipment on a telephone called an "Eavesdropper Stopper." In the attic, police seized two one-pound containers of manitol, a substance used as a cocaine "cutting" agent.*fn4

The appellee did not testify, nor did he offer any defense. The trial court convicted the appellee, concluding that possession was established from the totality of the circumstances. Both defendants appealed the judgments of sentence.

The judgments of sentence were reversed by the Superior Court, with Judge Watkins dissenting. The Commonwealth appeals the reversal of the judgment of sentence as to appellee Carl Macolino on the possession charge.

In reviewing a case where the sufficiency of the evidence produced is contested the test is "whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable

[ 503 Pa. Page 206]

    inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979).

Certainly one of the elements which had to be proven by the Commonwealth was knowing or intentional possession of the cocaine. 35 P.S. ยง 780-113(a)(16). Possession can be proven by showing actual possession, i.e., a controlled substance found on the appellee's person, or by showing that the appellee constructively possessed the drug. Since the cocaine was found in the appellee's bedroom, and not on his person, the Commonwealth had the burden of proving that he had constructive possession of the drug. Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control. Commonwealth v. Chenet, 473 Pa. 181, 184, 373 A.2d 1107, 1108 (1977); Commonwealth v. Fortune, ...

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