Concurring and Dissenting Opinion by
Mr. Justice Roberts:I am in agreement with the Court’s resolution of defendant Crutchley’s appeal and join in the first part of the majority’s opinion. As to appellant John A. Shaffer’s appeal, however, I am unable to accept the majority’s pronounced departure from our recent decisional law in Commonwealth v. Davis, 444 Pa. 11, 280 A. 2d 119 (1971); Commonwealth v. Russell, 444 Pa. 4, 279 A. 2d 185 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 272 A. 2d 476 (1971); Commonwealth v. Whitner, 444 Pa. 556, 281 A. 2d 870 (1971); and Commonwealth v. Townsend, 428 Pa. 281, 237 A. 2d 192 (1968). I therefore dissent.
The pivotal facts upon which appellant Shaffer’s appeal turn relate back to the circumstances of his arrest. The police, concededly acting upon probable cause, stopped a car driven, but not owned, by Shaffer and occupied by four individuals. During a constitutionally permissible search incident to a lawful arrest, the police discovered several items of recently stolen jewelry that eventually formed the basis for Shaffer’s conviction for receiving stolen goods, burglary, and larceny. The jewelry was found in several locations— *111some of it was concealed in a sock fchat was thrown out of the car window after appellant Shaffer left the car and approached the police car; the rest of the jewelry was found under the front seat and under the rear seat.
The jewelry in question had been stolen from two residences the day before the above arrest and search was made. On the sole basis of Shaffer’s mere presence in the automobile the majority sustains a finding that defendant had possession of the goods and thus could be convicted of both receiving stolen goods and the actual theft of the jewelry. That holding is totally at odds with our recent decisions in Commonwealth v. Davis, supra; Commonwealth v. Russell, supra; Commonwealth v. Tirpak, supra; Commonwealth v. Whitner, supra, and Commonwealth v. Townsend.
After concluding that a jury would be warranted in finding that defendant had possession of the stolen goods, the majority goes on to uphold the trial court’s charge to the jury that from defendant’s possession of the goods, they could infer that the defendant was the actual thief. I believe that this is an impermissible inference, see Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1971). Assuming, arguendo, that defendant had possession of the stolen jewelry, I would reverse appellant Shaffer’s convictions for larceny and burglary.
In Commonwealth v. Townsend, 428 Pa. 281, 237 A. 2d 192 (1968), this Court reversed a conviction for “possession of a firearm without a license” where the defendant was one of three men in a car in which three unlicensed guns were found—one in the back seat and one protruding from under the front seat, as well as one concealed under the hood. We there first noted that: “[t]wo elements are essential to a finding of joint possession: the power of control over the weapon and the intention to exercise this control.” Id. at 284, 237 *112A. 2d at 194. We then went on to reject the Commonwealth’s contention that “mere presence in a vehicle containing two weapons is sufficient to sustain a finding of guilt.” Id. at 285, 237 A. 2d at 194.
Similarly in Commonwealth v. Davis, 444 Pa. 11, 280 A. 2d 119 (1971), this Court held that “a defendant can be said to be in possession of stolen goods only when it is proved that he exercised conscious control or dominion over those goods.” Id. at 15, 280 A. 2d at 121. In Davis the defendant was charged with receiving stolen goods that were discovered by the police in the basement of the defendant’s former wife. Despite the fact that defendant spent much time in the apartment, and despite the fact that defendant’s present mistress had a key to a basement cupboard that contained several dress price tags, this Court held that the evidence was insufficient to support a conviction for receiving stolen goods. The same analysis was applied in Commonwealth v. Russell, 444 Pa. 4, 279 A. 2d 185 (1971), where we held that a defendant could not be held to have “control or dominion” of stolen goods where the goods were located in his sister-in-law’s house. Again in Commonwealth v. Whitner, 444 Pa. 556, 281 A. 2d 870 (1971), we held that a defendant could not be said to have “possession” of stolen goods on the sole evidence that he was found in a friend’s apartment that contained, in plain view, recently stolen articles.
Finally, our recent decision in Commonwealth v. Tirpak, 441 Pa. 534, 272 A. 2d 476 (1971), compels a different result than that reached by the majority. In Tirpak the police entered a room that contained seven individuals and a quantity of narcotics sitting in the middle of the floor. This Court held that the defendant’s presence in the room, even though the narcotics were not concealed but in plain view of all present, was not “sufficient to prove beyond a reasonable doubt that *113these four defendants were guilty of . . . Possession or control of drugs”. Id. at 537, 272 A. 2d at 478 (emphasis added).
Virtually ignoring these well reasoned opinions the majority offers the following as its sole justification for concluding that a jury would be “warranted” in finding that appellant Shaffer had “dominion or control” over the jewelry: “The totality of the circumstances justify a finding that all of the occupants of the vehicle were acting in concert and the act of throwing the jewelry from the vehicle was certainly exercising a conscious dominion and control over the jewelry, in an obvious attempt to conceal the jewelry from the officers.”
With all due deference to the majority, I fail to see what distinguishes the “totality of the circumstances” in this case, where defendant is merely one of four people in a car that had stolen jewelry carefully concealed, from the “totality of the circumstances” in Townsend, where defendant was one of three individuals in a car which contained unlicensed firearms, or in Tirpak, where appellants were four of seven individuals found in a room with narcotics prominently displayed in its center.
Nor can I agree with the majority’s statement that the occupants in the car were “acting in concert”. Nothing in the record supports such a finding, and I see nothing which distinguishes this case from Townsend, where defendant was one of three people in a car, or Tirpak, where appellants were four of seven people in a room.
Finally, I fail to see why the majority attaches significance to the fact that, while appellant Shaffer was out of the car and talking to a police officer, another individual threw a sock containing jewelry out of the window. Certainly that act says something about the *114“dominion or control” of the thrower, but nothing whatsoever as to an individual who was no longer in the car.
Because I find, following the principles established in our recently decided law, supra, that defendant had no possession, control or dominion over the goods in question, I would reverse the judgment of sentence.