Summary
holding that the Commonwealth failed to prove Duffy constructively possessed a gun and contraband found in a car that was not his, and in which he was just a passenger, where there was no evidence establishing Duffy knew about the gun and contraband
Summary of this case from Commonwealth v. KennedyOpinion
April 14, 1975.
June 24, 1975.
Criminal Law — Possession of burglary tools — Violation of Uniform Firearms Act — Contraband not found on defendant's person.
1. Where contraband is not found on the defendant's person, he may be properly convicted of possession of burglary tools only if the Commonwealth proves joint constructive possession.
2. Two elements are essential to a finding of joint constructive possession: the power of control and the intent to exercise that control.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 157, April T., 1975, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1973, No. 195A, in case of Commonwealth of Pennsylvania v. David Duffy and Walter Hall. Judgment of sentence reversed.
Indictment charging defendant with violation of the Uniform Firearms Act, unlawful possession of burglary tools, conspiracy and related charges. Before LEWIS, J., without a jury.
Finding of guilty of violation of the Uniform Firearms Act and unlawful possession of burglary tools and judgment of sentence entered thereon. Defendant appealed.
M. Richard Mellon, with him Samuel J. Reich, Mark L. Glosser, and Cooper, Schwartz, Diamond Reich, and Mellon-Stitt Associates, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Argued April 14, 1975.
Appellant contends that the trial court erred in failing to grant appellant's demurrer following the close of the Commonwealth's case.
On October 19, 1972, appellant was a passenger in an automobile which was stopped by a police officer for having inoperative tail lights. The driver of the car was not the registered owner, and upon his failure to produce proper identification he was requested to drive to the police station. Appellant accompanied the driver. At the station, the driver gave permission for the police to search the vehicle. The search revealed a pistol far underneath the passenger's side of the front seat, a mask and gloves in the glove compartment, and burglary tools in the rear seat. Both appellant and the driver were found guilty of possession of burglary tools and violation of the Uniform Firearms Act. Post-trial motions were filed and denied.
Because the contraband was not found on appellant's person, he was properly convicted only if the Commonwealth proved joint constructive possession. Two elements are essential to such a finding: the power of control and the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). Appellant's convictions must be reversed because the Commonwealth failed to prove that appellant knew of the presence of the contraband, Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973), and thus failed to prove that appellant had the requisite intent to exercise control.
The Commonwealth did not file a brief in the instant case. By letter dated April 11, 1975, the Commonwealth explained its decision: "Following a thorough examination of the record and given the issue raised on appeal . . . the Commonwealth believes that it does not have an adequate arguable position to set forth in opposition to appellant's argument concerning the failure to grant appellant's demurrer to the Commonwealth's evidence on the indictment charges."
Judgment of sentence reversed.