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decided: April 14, 1986.


Appeal from Order of Superior Court of Pennsylvania at No. 255 Harrisburg, 1983, Dated October 12, 1984, Reversing Judgment of Dauphin County Court of Common Pleas at No. 1753 C.D. 1980; 334 Pa. Superior Ct. 198, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting opinion.

Author: Hutchinson

[ 510 Pa. Page 300]


The Commonwealth appeals by allowance a Superior Court panel's order reversing appellee, George Carroll's, conviction for possession of a controlled substance with intent to deliver. 35 P.A. ยง 780-113(a)(30). The sole issue presented on appeal is whether The Commonwealth presented sufficient evidence to establish constructive possession. We hold that this case is controlled by our recent decision in Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983), and the evidence was sufficient. See also Commonwealth v. Gilchrist, 255 Pa. Superior Ct. 252, 386 A.2d 603 (1978). Thus, we vacate Superior Court's order reversing Common Pleas and remand the case to it for consideration of appellee's other issues.

On October 15, 1980, the Harrisburg Police Department, through a confidential informant, made a controlled buy of heroin in Room 21 of the Econo Motel in Harrisburg. The informant used marked bills and immediately turned the purchased contraband over to the police. The room was registered to Mr. and Mrs. George Carroll. The only occupants

[ 510 Pa. Page 301]

    of the room were George Carroll, his wife Sally McLaughlin Carroll (a/k/a Ikey) and his teenage stepdaughter. A warrant was obtained to search the room; it was executed on October 16.

In Room 21, the officers found 680 milligrams of heroin, approximately seven street doses, in the pocket of a pair of woman's jeans. The jeans were found in a laundry bag lying next to one of the beds. The occupants claimed that the jeans belonged to a friend of the daughter. The heroin was wrapped in a three year old rent receipt made out to appellee's wife in her maiden name. The officers also found a twenty dollar bill used in the controlled buy in appellee's pants and a hypodermic syringe and a bottle cap "cooker" underneath the plastic liner of the bathroom trash can.*fn1 All occupants denied knowledge of the drugs and denied that they were drug users.*fn2 Appellee was found guilty of possession with intent to distribute in Dauphin County Common Pleas. Post-trial motions were timely filed and denied. He was sentenced to two and one-half to five years in prison.

On appeal, Superior Court reversed holding that the evidence presented was not sufficient to establish constructive possession because it did not show intent to control. Commonwealth v. Carroll, 334 Pa. Superior Ct. 198, 482 A.2d 1292 (1984).

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 the reasonable inferences that evidence permits in favor of the verdict winner. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

[ 510 Pa. Page 302]

The Commonwealth could not establish actual possession; its case relied upon constructive possession. Constructive possession is a somewhat vague and esoteric concept. "The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown but where the inference that there has been actual possession is strong." Whitebread and Stevens, To Have and To Have Not, 58 U.Va.L.Rev. 751, 755 (1972). We have held that constructive possession exists if an individual has "conscious dominion" over the illegal property. Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). Constructive possession by its nature is not amenable to "bright line" tests. We have held, therefore, that it may be established by the totality of the circumstances. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). In Macolino, we also held that constructive possession may be inferred if the contraband is located in an area under the joint exclusive control of the defendant and his spouse.

In our judgment, the instant case is controlled by Macolino, supra.*fn3 In that case, police officers entered the residence of Mr. and Mrs. Macolino. They found a large quantity of cocaine in their bedroom closet. A device for packaging cocaine, an electronic eavesdropping detector and drug books were also found in the bedroom. Several containers of Manitol, a cocaine cutting agent, were found in the attic. We held that joint control will not prevent a finding of constructive possession in one of the individuals and that the factfinder could have concluded that appellee exercised conscious dominion over the cocaine.

The material facts in this case match those in Macolino. A husband and wife had joint control of a residence, contraband was hidden ...

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