*1 incomplete project so was the construction however, Davenport contract Valley the full not owe did Hidden judge price. $3,000.00 concluded that The trial by Daven- owed services still the value of reasonable ap- granted new unless port. trial therefore He appellee filed The pellee remittitur. a $3,000.00 filed judgment of $6,000.00 in the amount remittitur was entered. judge’s power question
Appellants
trial
do
filing of
trial on
of a new
denial
to condition
the verdict.
the excessiveness
because of
a remittitur
established
power
do so well
court to
Pennsylvania Prac-
Pennsylvania.
6A Standard
See
argue
Appellants
the amount
§115.
Ch.
tice,
Ap-
speculative.
arbitrary and
of the remittitur
object
pellants,
to the amount
did not
however,
after it was
ordered or
time it was
remittitur at the
judgment
appellees
accepted by
entered. Hav-
ing
issue for consideration
raise the
failed to
appellants
raise the issue for
cannot
court below,
Corporation Key
appeal.
Brunswick
first time on
Enterprises,
Before Jr., J., Mirarchi, jury. without
Louis for Sherman, appellant. J. Stotland,
Maxine Assistant District Attorney, her James T. Milton Ranney with M. Stein, Assist ant District Richard A. Attorneys, First Sprague, As District sistant Attorney, Arlen Specter, District for Attorney, Commonwealth, appellee. by 1974: P. J., April 3,
Opinion Watkins, of sentence appeal judgment This is an County of Pleas of Philadelphia Court Common convic- Martin after by the Valle, defendant-appellant, for a jury, tion sitting the court without by below, violation of Uniform Firearms Act. the evidence is that contention a rea- beyond
was not sufficient his guilt establish of Fire- sonable of the Uniform doubt violation L. amended, arms June P. as Act, 872, §628, here P.S. Act §4628(e). pertinent part involved shall reads: No “(e) person carry in any . . . . vehicle license therefor. .
The evidence viewed most favorable to light the Commonwealth the appel established that clearly possession was in car. The indi lant evidence cates that he was the sole occupant of the car seated behind the wheel of the car. He to the offi lied *3 cer the him ownership. about When officer to asked from step the the car, was able shut off the appellant to motor with the key. driver, As the the was appellant in control and possession of the vehicle the including trunk the and as case in trunk the it unlocked, was is infer reasonable that he had to of its con knowledge the tents, of a .38 weapons, consisting loaded revolver and a sawed-off loaded the shotgun. Prior arrival to the foreman police, plant had testified the that appellant and two men other had the entered Adams Eug Cleaning Plant after 5 p.m. As he was the locking as the men doors and turned to the foreman leave, noticed a beneath bulge appellant’s shirt. As the result of this the officer information, pulled rear seat of car out and retrieved an unlocked attache case from the trunk. Commonwealth v. Festa, 156 Pa. Superior Ct. A. 2d 112 329, 338, 40 See also, S. v. U. 426 F. 2d Gaylor (9th 233 Cir. 1970). The fact that his co-defendant had the key to the case in unlocked immaterial as the case was
trunk of tlie car in sole was in who appellant control of the clearly and the trunk. of the vehicle possession and control was the search also contends a motion to failed litigate he to However, unlawful. issue to raise this right waived his suppress thus, on R. Crim. P. appeal. Rule 323(b), affirmed. of sentence
Judgment by Dissenting Opinion J.: Spaeth, a sitting convicted by judge Appellant Fire 628 of Uniform jury Section violating P. L. as amended 1936, 872, arms Act of June Act, 24, P. L. No. by 660, 346, §1, Act of August 18, Pa.S. which §6106(a) (1973), P.S. now 18 §4628(e), carry any “No shall provides: person or about his . . . without person vehicle or concealed on Appellant license therefor. . . .” claims evi dence insufficient. There is merit to his claim.* on June a number of p.m.
About 5:00 call police responding pro- cars radio Philadelphia ceeded to Emerald Street. Parked awas front running. Pontiac with its engine Appellant was seated behind the wheel. men steering Two (one whom was tried with appellant) apprehended on the side- walk about twenty to feet twenty-five away car. was told to Appellant step out of the car and to off shut which he did. engine, When asked who owned said it car, was his. The driver’s card license and owner’s that he handed an officer the car indicated, however, belonged to another. *4 a information As result of received citizens who * Appellant charged carrying deadly also with a concealed burglary. weapon guilty carrying He was found not of deadly weapon. charge A concealed demurrer was sustained to the burglary. of
195 officer the rear police pulled up had gathered about, An retrieved from seat of the car.** attache case was Inside a .38 trunk. The case was not locked. both shotgun, caliber and a sawed-off pistol 12-gauge case of which were loaded. The to attache key found in the co-defendant. pocket appellant’s of both
Since
and his co-defendant were
to obtain
conviction
occupants
car,
appellant’s
elements of joint
Commonwealth had to
prove
had (1)
i.e.,
constructive possession,
of
an
(2)
control
power
weapons
over
v.
intent
to
Town
exercise
control. Commonwealth
428 Pa.
A.
194
send,
281, 284,
;
237
2d 192,
(1968)
Commonwealth v.
Pa.
Ct.
Superior
642,
167
Thurman,
Pos
76 A. 2d
See also
645,
(1950).
Comment,
484
483,
session
Narcotics
“Joint Posses
Pennsylvania:
of
sion” 76 Dick L.
power
Eev. 499
One has
(1972).
“in
control over a
if
located
weapon
prox
it is
such
...
imity
as to be
im
convenient of access
within
physical
mediate
reach.” Collier v.
Commonwealth,
S.W. 2d
1970).
(Ky.
Knowledge
pres
ence of a
“a
weapon
necessary
to
predicate
finding
of intention
to exercise control.” Commonwealth
Townsend, supra at
infer had control appellant that to the keys had the much as he was driver so inferred, to the trunk. It cannot be how- car access in that were weapons that knew ever, in not case The visi- weapons attache the trunk. were from the driver’s seat. nor accessible they ble, the car false statement that he owned is Appellant’s in not it no related to the way weapons. is significant; The fact car did not is belong an against inference that about weapons, he knew as the fact that the to the attache case found key in the of the possession co-defendant. has cited Commonwealth Commonwealth
Festa, Superior Ct. 40 A. 2d (1944), where this court to make the offense of stated out a license carrying Common- “[t]he wealth need not more than the prove presence firearm in the car while accused inside.” Id. at 40 A. 2d 116. at This statement, however, must taken not be out of context. Festa did not proceed on a theory of joint possession. constructive The defend- ant was the sole possessor and occupant car. weapon in revolver-—was the glove compart- —a ment and so accessible to the he ad- defendant; indeed, mitted that he it had been in knew the compartment for three past months. The statement it was enough “presence to show firearm the car while ac- cused was inside” was made in response to the argu- ment that the Commonwealth had proved that defendant had been “carrying” revolver.
Since at best one of the only two elements joint possession constructive was proved, appellant’s convic- tion should be revei’sed. J., joins this dissenting opinion.
Hoffman,