On August 8, 1973, appellant was convicted by a judge sitting without a jury of possession of a controlled *173 substance with intent to deliver, 1 and on October 12 he was sentenced to two and one-half to fifteen years in prison. After a Post Conviction Hearing Act 2 hearing on May 1 and 14, 1974, appellant was grantеd leave to file a motion in arrest of judgment nunc pro tunc. This motion was subsequently denied and no appeal was taken. However, on Februаry 14, 1975, a second PCHA hearing was held and appellant was granted leave to file an appeal nunc pro tunc.
Appellant’s sole сontention is that the evidence was insufficient to establish beyond a reasonable doubt that he was illegally in possession of a controlled substance with intent to deliver. “In determining whether the evidence is sufficient in law to prove that á defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all
reasonable
inferences arising from the evidence, upon which the trier of facts could properly have based the verdict.”
Commonwealth v. Fortune,
On January 1, 1973, three Philadelphia police officers, armed with a search warrant, went to 1719 Wagner Street, Philadelphia. The name on the warrant was “Bobby.” Bobby was desсribed as a Negro male, 28 to 33 years of age, five feet seven inches tall, weighing 145 pounds, and having a mustache.
As the officers аpproached 1719 Wagner Street they saw appellant drive up in his car and park. They followed him as he went onto the frоnt porch and began to open the door. One officer identified himself and gave *174 appellant a copy of the search warrant. Appellant let the officers in, and a search was made.
No controlled substance was found on appellant. In the front bedroom on the second floor, however, the officers found approximately 50 packets of herоin in the top drawer of a dresser and approximately 25 packets in the bottom drawer. Also found in the front bedroom were two boxes of empty glazed paper packets, one box of rubber bands, one measuring spoon, a razor blade, and 555 dоllars. Male clothing was found in that room and in other parts of the house. There was evidence that another male lived in the middlе bedroom, but the officers testified that they could not recall if they saw any female clothing.
While the police were at 1719 Wagner Street, a woman, Sherry Wilson, entered. She was searched,, and when heroin was found on her person, she was arrested.
A number оf personal papers, including several bills and documents with the name of Robert Hicks and the Wagner Street address, were found in the house. It is unclear, however, where they were found. One of the arresting officers testified as follows:
Q. Now, in the front bedroom did you tаke with you any pieces of paper with Mr. Hicks’ name on it?
A. Yes.
Then several questions later the same officer contradicted himself:
Q. You don’t have with you any items that would put Mr. Hicks’ name on anything in the front room, do you?
A. What?
Q. Do you have anything with you with the name Bobby on it in the frоnt room?
A. There was papers, envelopes in the front bedroom.
*175 Q. Anything with the name Bobby on it?
A. No.
THE COURT: Anything with Robert Hicks on it?
THE Witness: No, sir.
Wilson testified as a defense witness that she was a roomer at 1719 Wagner Street, and slept in both the front and rear bedrooms. She also said that she was a heroin addict, and that she got her heroin from another female roomer at 1719 Wagner. She said that appellant did not know heroin was used in his home, that she had never seen appellant with any heroin, and that the heroin found by the police belonged to the other female roomer. Appellant also testified that the heroin was not his, and that he did nоt know it was in the house.
The trial judge may not have believed Wilson and appellant. 3 Even so, the evidence is insufficient.
When possession of a controlled substance is charged, the evidence must establish that the defendant had conscious dominion over the substance.
Commonwealth v. Fortune, supra; Commonwealth v. Davis,
The illegal possession of narcotic drugs is a crime which “by its very nature is unique to the individuаl. By definition, the possessor is the only person who could commit this crime. Guilt by association . . . is unacceptable.”
Commonwealth v. Reece,
Commonwealth v. Fortune, supra
We applied these principles in
Commonwealth v. Maurer and Lauber,
Pa.Super.,
Here, appellant was not at home when thе police arrived to conduct the search, and there is no evidence as to when appellant was last in the house or whether he was the last person in the house prior to the search. There is evidence that at least two other pеople had equal access to the house — the male roomer and Wilson, who arrived during the search. No controlled substance was found on appellant, although some was found on Wilson. Male clothing was found throughout the house, but there was no evidеnce to show that the clothing in the front bedroom, where the contraband was, belonged to appellant rather than to the other male. The evidence is unclear as to where appellant’s personal papers were found. Finally, the trial judge stated that the only part of the search warrant description of “Bobby” that fit appellant was that he was a Negro male. Appellant was 52 years old.
*177 Upon “consideration of the totality of the circumstances”, Commonwealth v. Fortune, supra, one may conclude that it is possible that the controlled substance was appellant’s, but not that it was his beyond a reasonable doubt.
The judgment of sentence is reversed and appellant is discharged.
Notes
. The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13; as amended October 26, 1972, P.L. 1048, No. 263, § 1, 35 P.S. § 780-113(a)(30).
. Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq.
. Since the judge did not write an opinion, we do not know the basis of his decision.