Summary
In Commonwealth v. Tine, 221 Pa. Super. 318, 292 A.2d 483 (1972), this Court reversed a conviction for the possession of narcotic drugs where the drugs were lying on the kitchen table in plain view of the appellant therein who was a guest sitting in the living room. "Mere knowledge of presence does not establish possession or control of contraband drugs. Under the circumstances of the present case, appellant could not be found to have been in possession or control of the seized drugs."
Summary of this case from Commonwealth v. UpdegroveOpinion
April 11, 1972.
June 16, 1972.
Criminal Law — Drugs — Possession or control — Knowledge of presence of contraband drugs — Guest in home in which drugs are found.
1. Mere knowledge of presence does not establish possession or control of contraband drugs.
2. In this case, in which it appeared that defendant was arrested in the living room of a mobile home in which he was a guest; that the drugs were found on a table in the kitchen which could be seen from the living room; and that defendant had no drugs on his person; it was Held that the evidence was insufficient to establish possession or control by the defendant of contraband drugs.
WRIGHT, P.J., and WATKINS, J., would affirm on the opinion of Judge McCORMICK.
Argued April 11, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 232, April T., 1971, from judgment of sentence of Court of Common Pleas of Westmoreland County, Jan. T., 1970, No. 193, in case of Commonwealth of Pennsylvania v. Joseph Michael Tine. Judgment of sentence vacated and appellant discharged.
Indictment charging defendant with unlawful possession of dangerous drugs. Before McCORMICK, J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Richard E. Myers, for appellant.
Henry A. Martin, Assistant District Attorney, with him John N. Scales, District Attorney, for Commonwealth, appellee.
Appellant was arrested on October 3, 1969, for violation of the Uniform Firearms Act, 18 P.S. 4628, and for possession of narcotic drugs, a violation of The Drug, Device and Cosmetic Act, 35 P.S. 780-1 et seq. This arrest was the result of a raid conducted by federal, state and local law enforcement officers.
Based upon information received from a confidential informant and prior surveillances, police officers obtained warrants for the search of two mobile homes owned by Anthony LaRocca and George San. The police raid resulted in the arrest of twenty-one persons who were either in the mobile homes or on the grounds surrounding the homes attending a pig and corn roast.
At the time of the raid appellant was a guest in the living room of the LaRocca mobile home. The raid uncovered quantities of marijuana and dangerous drugs in the bedroom and the kitchen, which adjoined the living room of the LaRocca trailer.
A motion to suppress the evidence seized in the raid was denied. Thereafter, appellant was tried and found guilty of the possession of narcotic drugs and not guilty of the Uniform Firearms Act violation.
Appellant contends that probable cause was lacking for the issuance of the search warrant used to search the LaRocca trailer, and that the search warrant was not properly executed. We do not have to decide these constitutional issues, however, as the evidence in this case was not sufficient to sustain a finding of guilt on the charge of possession of narcotic drugs.
The instant case cannot be distinguished from Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). In Tirpak, the police officers entered the home of Ida Jane Jansama and arrested seven guests of Miss Jansama. These guests were discovered in the game room, where the police found an open jar containing marijuana and four butts of marijuana cigarettes. On these facts our Supreme Court held that the evidence was insufficient to find that the guests in the Jansama house were in possession or control of the drugs, and that, therefore, the guests could not be found guilty.
It should be noted that our Court in Commonwealth v. Schulhoff, 218 Pa. Super. 209, 275 A.2d 835 (1971), held that even if the appellant was co-lessee of an apartment in which drugs were found in the presence of four other people, the evidence would be insufficient to convict the co-lessee.
In the instant case the Commonwealth concedes that appellant had no drugs on his person, that the contraband was found on a kitchen table, and that appellant was arrested in the living room of the mobile home. The Commonwealth, however, contends that the drugs were found on a table which could be seen from the living room and that therefore appellant could have had knowledge that the drugs were present in the trailer. It is apparent from our Supreme Court's holding in Tirpak that mere knowledge of presence does not establish possession or control of contraband drugs. Under the circumstances of the present case, appellant could not be found to have been in possession or control of the seized drugs.
Therefore, the judgment of sentence is vacated and appellant is discharged.
WRIGHT, P.J., and WATKINS, J., would affirm on the opinion of Judge McCORMICK.