Summary
In Commonwealth v. Updegrove, 223 Pa. Super. 7, 296 A.2d 854 (1972), a search of one Stephen Artjuch's apartment disclosed, inter alia, nine marijuana cigarettes lying on the kitchen table.
Summary of this case from Commonwealth v. WalleyOpinion
September 11, 1972.
November 16, 1972.
Criminal Law — Drugs — Possession — Evidence — Sufficiency — Presence at scene alone — Knowledge of presence of drugs — Circumstances.
1. In the crime of narcotics possession, presence at the scene alone cannot implicate a party in the crime which by its very nature is unique to the individual; by definition the possessor is the only person who can commit the crime.
2. Mere knowledge of presence does not establish possession or control of contraband drugs.
3. Under a valid search warrant, the police searched the apartment of A. Both A's name and defendant's name appeared on the mail box of the apartment building. A was the sole occupant of the apartment, but he permitted defendant to enter and leave the premises at will. At the time of the search, A was absent from the apartment, but the police were admitted by the defendant, who was present in the apartment along with a third person. During the course of the search, the police discovered nine marijuana cigarettes on the kitchen table. They also found a plastic box containing LSD lying among the defendant's personal effects on the bedroom floor.
It was Held, in the circumstances, that defendant could not be found to have been in possession or control of the marijuana. It was Held that the evidence was sufficient to convict defendant of possession of the LSD.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 1089, Oct. T., 1972, from sentence of Court of Common Pleas of Lehigh County, No. 469 of 1971, in case of Commonwealth of Pennsylvania v. James Mitchell Updegrove. Conviction for possession of marijuana reversed and conviction for possession of LSD remanded for resentencing.
Indictment charging defendant with illegal possession of dangerous drugs and narcotic drugs. Before KOCH, P.J., without a jury. Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Donald H. Lipson, for appellant.
W.F. Steigerwalt, Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., would affirm on the opinion of KOCH, P.J.
WATKINS and PACKEL, JJ., dissented.
Argued: September 11, 1972.
Appellant contends that the evidence produced at trial was insufficient to support a conviction for the possession of narcotics and dangerous drugs — namely LSD and marijuana.
Pursuant to a valid search warrant, the police appeared at 409 Liberty Street in Allentown on August 6, 1972. The warrant gave the police the authority to search the apartment of Stephen Artjuch who resided at that address. Upon entering the building, the police noticed that both Artjuch's name and the appellant's name appeared on the mailbox. Artjuch was the sole occupant of the apartment, but he permitted the appellant to enter and leave the premises at will. After seeing the mailbox, the police proceeded to the apartment. Artjuch was absent from the apartment, but the police were admitted by the appellant who was present in the apartment along with one Reinhard. During the course of the search, the police discovered nine marijuana cigarettes on the kitchen table. They also found a plastic box containing LSD lying among the appellant's personal effects on the bedroom floor.
Presence at the scene of the crime is not of critical importance in a drug possession case. Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463 (1970). In the crime of narcotics possession, presence at the scene alone cannot implicate a party in the crime which "by its very nature is unique to the individual. By definition, the possessor is the only person who could commit this crime." Reece, supra. 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." Tine, supra, 221 Pa. Super. at 321. The evidence herein with respect to the marijuana is less sufficient to convict appellant than the evidence which the court found deficient in Tine. The appellant was one of only three people with access to the drugs. Just as in Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971); Commonwealth v. La Rosa, 218 Pa. Super. 203, 275 A.2d 693 (1971); and Commonwealth v. Schulhoff, 218 Pa. Super. 209, 275 A.2d 835 (1971), there is insufficient evidence to find that the marijuana was in the possession of the appellant.
Since the LSD was lying among appellant's personal effects, there can be no doubt that the evidence was sufficient to convict the appellant on that count. The conviction for possession of LSD should be remanded for resentencing, however, in light of the New Drug Act which went into effect following the imposition of sentence on the appellant, but before this direct appeal was finally decided. Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972).
The conviction for the possession of marijuana is reversed and the conviction for possession of LSD remanded for resentencing under the New Drug Act.
WRIGHT, P.J., would affirm on the opinion of KOCH, P.J.
WATKINS and PACKEL, JJ., dissent.