dissenting.
The majority today incorrectly, in my view, holds that the evidence presented at trial was sufficient to sustain appellant’s conviction for possession of a controlled substance. As *541I believe the evidence, when viewed in light of our case law on the subject, is insufficient, I believe appellant must be discharged.
In Commonwealth v. Fortune, 456 Pa. 365, 368-69, 318 A.2d 327, 328 (1974), we stated:
“When the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious domain over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 328 (1971). The illegal possession of narcotic drugs is a crime which ‘by its very nature is unique to the individual. By definition, the possessor is the only person who could commit the crime. Guilt by association ... is unacceptable.’ Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). See also Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). The presence of one person in a group of people at the scene ‘is not of critical import in drug possession cases.’ Commonwealth v. Reece, [supra, 437 Pa. at 427, 263 A.2d at 466]. See also Commonwealth v. Tirpak [supra]. ‘[T]he fact of possession loses all persuasiveness if persons other than the accused had equal access ... to the place in which the property was discovered ...” Commonwealth v. Davis, supra at 16, 280 A.2d at 121, quoting 9 J. Wigmore, Evidence § 2513 (3d ed. 1940). . . . ” (Emphasis added.)
Instantly, appellant was not alone in his two room apartment; rather, the record indicates that another individual was in the kitchen. The police officer himself testified that he waited approximately two and one-half minutes after announcing his presence before he was admitted into the apartment. The contraband was discovered under a cushion in the “parlor bedroom.” The proposed distinctions offered by the majority to the above cited cases are not, in my view, persuasive.
While it is true that appellant was the lessee of the apartment where the heroin was seized, our law requires more. Thus, in my view, had the heroin been discovered in a place that was peculiarly accessible to appellant, such as in a *542dresser in his bedroom or in a hiding place that would not be obvious to anyone in the apartment, a conviction for possession of the heroin would be allowable. Here, however, it is equally likely that appellant’s guest could have placed the heroin under the cushions of the couch before he began meditating, and thus, on the evidence presented instantly, appellant’s conviction cannot stand. See, Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977). I would order appellant to be discharged and hence this dissent.