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COMMONWEALTH PENNSYLVANIA v. DONALD JOHN MUDRICK (04/10/86)

decided: April 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DONALD JOHN MUDRICK, APPELLEE



Appeal from Order of Superior Court of Pennsylvania at No. 01094 Philadelphia, 1983, Dated December 21, 1984, Reversing Judgment of Sentence of Monroe County Court of Common Pleas Dated April 18, 1983 at Nos. 461 and 462 Criminal 1981, 339 Pa. Superior Ct. 618, 488 A.2d 1166 (1984)

COUNSEL

James F. Marsh, Dist. Atty., John B. Dunn, Asst. Dist. Atty., Monroe Co., for appellant.

John P. Lawler, Monroe Co., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting Opinion.

Author: Hutchinson

[ 510 Pa. Page 306]

OPINION OF THE COURT

The Commonwealth appeals by allowance a Superior Court order reversing appellee's convictions for possession of marijuana, possession of cocaine, and possession of marijuana and cocaine with intent to deliver. 508 A.2d 341 (1984). The only issue presented is whether the evidence presented by the Commonwealth was sufficient to establish constructive possession. We hold that it was and reverse Superior Court.

Early in the afternoon of May 8, 1981, local police officers and narcotics agents from the Attorney General's office arrived at the residence of a Sandra Dietz, 2103 Vacation Lane, Stillwater Lake, Pocono Summit, Pennsylvania. They intended to serve a New Jersey fugitive warrant on her. They knocked; appellee answered the door. After the officers explained their purpose, he told them that Ms. Dietz was sleeping in the bedroom and directed them to it. Appellee

[ 510 Pa. Page 307]

    was wearing only a pair of blue jeans. Some of the officers entered the bedroom, woke her, and placed her under arrest. Ms. Dietz was taken to the District Magistrate after dressing and using the bathroom. Appellee told another officer that he lived with Ms. Dietz and they were going to be married. He also mentioned that one of the dogs on the premises was his. The officers saw a box of what they believed to be marijuana on the living room coffee table. Appellee was ordered to sit down; he sat within two feet of the contraband. One officer remained on the premises with appellee while others obtained a search warrant. While waiting for the officers to return, appellee got up, walked into the kitchen and helped himself to a cold drink from the refrigerator. At about 3:00 P.M. the officers returned with a search warrant for the residence. In addition to the box on the coffee table, they found what proved to be cocaine in the bedroom and the study. The suspected contraband was confiscated and appellee was arrested. He retrieved his clothes from the bedroom in which Dietz had been sleeping. This was the only room in the residence in use as a bedroom. Subsequent chemical analysis showed that the substances seized were marijuana and cocaine.

At trial, appellee presented evidence that he actually lived in Blakeslee in the home of one Patrick Simonik, and that he paid room and board to Simonik and took meals there. A jury found appellee guilty of possession of marijuana and cocaine*fn1 and possession of marijuana and cocaine with intent to deliver.*fn2 Post-trial motions were denied. Monroe County Common Pleas imposed a total sentence of five to twelve months. Superior Court reversed. In a memorandum opinion, the panel held that the Commonwealth proved no more than appellee's presence at the scene, and the evidence was insufficient to establish constructive possession.

[ 510 Pa. Page 308]

When reviewing for sufficiency of the evidence, an appellate court may not substitute its judgment for the jury's. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983). It must view the evidence in the light most favorable to the verdict winner, here the Commonwealth, and draw all reasonable inferences that evidence permits in favor of the verdict winner. ...


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