Commonwealth v. Sterling

HOFFMAN, Judge:

The sole meritorious issue in the instant appeal is whether the Commonwealth proved appellant’s conscious dominion and control over a sizeable quantity of hashish, necessary to prove his possession of the controlled substance with the intent to deliver.

The facts relating to appellant’s arrest are not in dispute. On May 21, 1973, United States Customs officials in New York City, using a dog specifically trained to sniff out narcotics, became suspicious that a package addressed to Mrs. Donald Farr, c/o Mr. and Mrs. James Sterling, R. D. 1, Lehoy Forest Drive, Leola, Pennsylvania, contained contraband. The Customs officials opened the package and found a pewter antique pitcher, sealed with wax. A test boring through the paraffin revealed that the pitcher contained a large quantity of hashish.

The Customs officials repackaged the pitcher and notified a Philadelphia Customs official, a Postal Inspector assigned to Philadelphia, and State Police located in Lancaster, that they were forwarding the pitcher. Before delivering the package, the State Police made another test boring to verify that the pitcher contained hashish and sprinkled the pitcher with fluorescent powder. The Postal Inspection then arranged with the rural postal carrier to attempt delivery of the package at appellant’s home. At the same time, State Trooper Carl Harnish swore out a warrant authorizing a search of appellant’s home.

Police set up a surveillance of appellant’s residence as soon as the package was delivered at 3:30 p. m., on June 7, 1973. Appellant and his wife arrived at about *4146:45 p. m., retrieved the package and several letters from the mailbox, and went into their home. Trooper Hamish waited approximately forty-five minutes before executing the search warrant.

Trooper Harnish found the package unopened in the kitchen. Appellant told the trooper that he had no knowledge of what was in the package. He did tell the trooper that he had recently received a postcard from friends who were vacationing in Holland; the postcard stated: “Hi y’all. Amsterdam hasn’t changed a bit, Lots of young people here. Can’t understand it. Keep your eye peeled for souvenirs, and we’ll be seeing [you] in a couple of weeks.” After the trooper seized the package, he asked appellant whether he had any other contraband in the house. Appellant retrieved from one of the bedrooms a plastic bag containing approximately 90 grams of marijuana. The officer then explained that he was not authorized by the warrant to search further and requested that appellant consent to a search of the house and his automobile. Appellant signed a consent form and permitted the search. That search netted some mari j uana seeds, pipes used for smoking marijuana, and some “roaches,” (marijuana cigarette “butts”). Concerning the package, appellant told the trooper that he suspected that it might contain drugs, but that he had no intention of opening it. Upon further investigation, the police estimated that the retail value of the hashish was about $9000.00.

Appellant was charged with three separate offenses under the Controlled Substance, Drug, Device and Cosmetic Act:1 possession of marijuana, possession of marijuana with intent to deliver, and possession of hashish with intent to deliver. Appellant’s trial by jury commenced on October 23, 1974. On October 25, the jury found appellant guilty of possession of marijuana and *415possession of hashish with intent to deliver. Appellant was sentenced to a term of imprisonment of six to eighteen months on the charge of possession with intent to deliver and to a term of thirty days’ probation on the charge of possession of marijuana to be served concurrently with his jail term. The lower court denied appellant’s post-trial motions on February 12, 1975. This appeal, challenging the conviction of possession of hashish with intent to deliver, followed.

Appellant concedes that he was properly convicted of the charge of possession of marijuana. However, he challenges the sufficiency of the Commonwealth’s evidence on the charge of possession of hashish with intent to deliver.

“In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict.” Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). When possession of contraband is charged, the evidence must show not only that an accused had conscious dominion over the object; that is, the accused must have not only the power to exercise control, but also have an intent to exercise that power of control. Commonwealth v. Fortune, supra; Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 277 A.2d 476 (1971); Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974).

We have frequently considered cases in which several people had equal access to contraband, thereby negating the inference that the accused possessed the contraband. For example, in Fortune, “no narcotic drugs were found *416on the person of appellant. None were found anywhere else on the premises. Those that were found were not found in a place normally accessible only to a resident of a home. The drugs were found in plain view, strewn on the kitchen floor. Four persons were on the first floor and had more immediate access to the kitchen than did the appellant . . . . There is no evidence that the appellant had any knowledge of the presence of the drugs in her home prior to the arrival of the police.” 456 Pa. at 369, 318 A.2d at 329. See also Commonwealth v. Tirpak, supra; Commonwealth v. Schulhoff, 218 Pa.Super. 209, 275 A.2d 835 (1971).

The instant case raises a slightly different version of the same problem as presented in Fortune: there is no question that appellant and his wife were in possession of the hashish. One of them carried the package into their residence;2 the appellant directed the trooper to the package upon his request. There was no one else on the premises at the time of the search. The Commonwealth’s evidence, however, did not prove that appellant had discovered the contents of the package and that he intended to exercise control over the hashish. The package was not addressed to the appellant, but only in care of appellant and his wife. He did not open the package to gain access to the secreted contraband. Cf. Commonwealth v. DeWitt, 226 Pa.Super. 372, 314 A.2d 27 (1973). Finally, the postcard from appellant’s friends in Holland was totally consistent with the literal, innocent import of the words.

*417Absent some proof of appellant’s conscious exercise of dominion over the hashish — not just exercise of dominion over the package or the pitcher — the evidence was insufficient to sustain a conviction under § 780-113 (a) (30) of the Controlled Substance Act, supra. Therefore,, we reverse and order appellant discharged on the charge of possession with intent to deliver hashish.

PRICE, J., files a Dissenting Opinion in which VAN der VOORT, J., joins.

. Act of April 14, 1972, P.L. 233, No. 64, § 1 et seq., as amended, 35 P.S. § 780-101 et seq.

. It is interesting to note that the Commonwealth made no effort to pursue prosecution of appellant’s wife, despite the fact that all of the evidence admissible against appellant would also have been admissible against appellant’s wife. During the search of the house, Trooper Hamish apparently advised appellant’s wife that she would not be prosecuted: “Q. Did you mention or say anything to [appellant’s wife] as to whether she would be prosecuted for possession?

“A. I think at that time we indicated that we would not. That would be more persecution than anything.”