223 Pa. Super. 301 | Pa. Super. Ct. | 1972
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
On the evening of April 25,1969, appellant and four other men arrived in appellant’s car at an apartment building in Conshohocken which had been under surveillance for several weeks as a suspected center of drug traffic. The policeman at the scene knew only one of the men, Harold Thomas Eodenbaugh, an occupant of the dwelling. On leaving the building forty minutes later, two of the group returned to the automobile. Appellant, Eodenbaugh and another were heard engaged in an argument which was apparently over the quality of “some grass”.
Some fifteen minutes to an hour
Appellant’s conviction is based solely on circumstantial evidence. While such evidence can suffice to sustain a conviction, it must be such as “reasonably and naturally to justify an inference of the guilt of
If guilt of possession of contraband cannot be predicated on literal possession, there must at least be a showing of conscious control or dominion over the prohibited goods. Commonwealth v. Davis, 444 Pa. 11, 280 A. 2d 119 (1971). It is clear from recent Pennsylvania decisions that where contraband is found at or near an area occupied by several persons, mere presence, proximity to the contraband and the opportunity or power to possess it are insufficient, without more, to establish that any of those in the group were in possession or control. Commonwealth v. Tirpak, 441 Pa. 534, 272 A. 2d 476 (1971);
The most direct link between appellant and the contraband is the finding of a package containing heroin together with a pistol at a spot where appellant’s car, containing five persons had been parked some fifteen minutes to an hour earlier. Even if we ignore the time gap arising from the police delay in discovering the contraband in order to view the evidence in a light most favorable to the Commonwealth, the mere inference that the abandoned package came from appellant’s automobile is insufficient to support the further inference that appellant was a possessor. Despite the well-lighted condition of the street in front of the precinct house, none of the police officers around the car saw appellant hold or drop any package. He was merely seen opening the door “as if to get out”. The parked automobile contained four passengers in addition to appellant, including a known drug trafficker and appellant’s co-defendant, a confessed drug purchaser. If the contraband was indeed thrown out of appellant’s car, any of the five occupants could have thrown the package in the gutter to which all had access. That appellant may have had knowledge of the presence of contraband is not sufficient to support a finding that he intended to exercise control or dominion over the contraband. Tirpalc: supra. Nor do we see any rational connection between appellant’s owning and driving of the car and possession of the contraband. See Schulhoff, supra; Guevara v. United States, 242 F. 2d 745 (5th Cir. 1957).
That appellant was seen arguing with a drug trafficker and a confessing co-defendant, or that he may have been present in an apartment containing contraband drugs, are circumstances which support his guilt by association, but which cannot support conviction. The evidence in this case raises a strong possibility that appellant may have been in possession of the contraband. Mere possibilities, however, cannot sustain a conviction.
The judgment of sentence should be reversed.
Act of June 24, 1939, P. D. 872, §628, 18 P.S. §4628 (e).
Act of September 26, 1961, P. L. 1664, §1, 35 P.S. §780-1 et seq.
The third person was Jerome Focose, appellant’s co-defendant at trial. After the argument Focose was seen walking over to a picket fence nearby. Ten hours later, a bag containing marijuana was found near the fence. The bag was admitted into evidence at trial against both defendants.
When later questioned by the police, Focose admitted that he had purchased marijuana from Rodenbaugh. At trial, the police were permitted to testify as to this admission. We do not reach appellant’s contention that admitting this confession by his co-defendant constituted a violation of Bruton v. U.S., 391 U.S. 123 (1968).
At trial, seven months after the arrest, the officer testified that he went to the curbside area fifteen minutes after the youths were taken into the station. At the preliminary hearing three weeks after the arrest, the same officer recalled that it had been a “good hour” between taking the youths inside the precinct house and his discovering the contraband outside.
I do not reach the constitutional issues raised by appellant concerning the stopping of his car and the searches of both the car and the apartment.
In Tirpak, seven persons were found sitting in a room with a quantity of narcotics in their midst in plain view of all. Despite their presence in the room, proximity to the contraband and obvious knowledge of its presence, this evidence was held insufficient to prove beyond a reasonable doubt that four of the seven were guilty of possession or control of the contraband.
Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 186 A. 2d 632 (1962). Accord, Commonwealth v. Thurman, 167 Pa. Superior Ct. 642, 76 A. 2d 483 (1950).
Lead Opinion
Opinion
Judgment of sentence affirmed.