dissenting:
Appellant contends that the lower court erred in denying his demurrer and motion in arrest of judgment. I agree, and therefore, dissent.
*327At trial the Commonwealth presented the following facts. A United States Postal Inspector, John Ruberti, initiated an investigation concerning two packages which were in transit in the United States mail. One of the packages was addressed to Robert Rambo at English Village Apartments, Building Number 8, Apartment A -6, North Wales, Pa. 19454; the other was addressed to Mrs. P. Krammer, English Village Apartments, Building Number 8, Apartment RD, North Wales, Pa. The return address on the second package was to a Mrs. R. D. Ramo at appellant’s address. Both bore stamps from Tangiers, Morocco. Mr. Ruberti, in conjunction with the Pennsylvania Bureau of Narcotics, the Horsham Township police, and the Postmaster of North Wales, arranged for a controlled delivery1 of the two packages to appellant’s apartment. On July 6, 1974, agent Hirsch of the Narcotics Bureau obtained a search warrant for appellant’s apartment. At approximately 11:30 a.m. on that date, while police officers observed the building, a letter carrier for the North Wales post office delivered both packages to appellant. Appellant accepted the packages and signed a receipt for each one. At 12:45 p.m., agent Hirsch knocked on appellant’s door and announced himself. He then entered the unoccupied apartment and discovered the two packages unopened on the floor in the living room. The officers opened the packages and found stuffing, pottery, and a quantity of what was later found to be hashish. The police left a note for appellant informing him of the search and asking him to contact the Horsham Township police department.
On July 8, 1974, appellant reported to the Horsham police station where he was arrested for possession with the intent to deliver a controlled substance.2 On May 5, 1975, a jury *328found appellant guilty. The court sentenced appellant to undergo a term of imprisonment of one to three years and to pay a fine of $1,000. This appeal followed.
Appellant argues that the evidence is insufficient to show that he had conscious dominion or control over the hashish. In assessing appellant’s challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth, as verdict winner. Commonwealth v. Herman, 227 Pa. Super. 326, 323 A.2d 228 (1974); Commonwealth v. Moore, 226 Pa.Super. 32, 311 A.2d 704 (1973). Nonetheless, it is axiomatic that in a criminal case, the guilt of the accused must be proved beyond a reasonable doubt; Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971), and a conviction cannot be based upon mere conjecture or surmise. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Leonhard, 245 Pa.Super. 116, 369 A.2d 320 (1976). However, “[w]hen 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. Sterling, 241 Pa.Super. 411, 415, 361 A.2d 799, 801 (1976); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971).
Commonwealth v. Sterling, supra, presented a factual situation almost identical to the case at bar. In Sterling, the police arranged a controlled delivery of a package of hashish addressed to a Mrs. Donald Farr, in care of the appellant and his wife. The postman placed the package in appellant’s mailbox. Appellant and his wife returned home about three hours later, retrieved the package and other mail and entered their home. The police executed the search warrant about 45 minutes later and found the unopened package on the floor of the kitchen. A jury found appellant guilty of possession with the intent to deliver the hashish. Our Court concluded that the evidence was insufficient to prove con*329scious exercise of control over the hashish and we ordered appellant discharged.
I believe that Sterling squarely controls the instant case. The Commonwealth’s evidence did not establish that appellant had discovered the contents of the package or that he intended to exercise control over the hashish. He did not open the package to discover the concealed contraband; he merely placed the unopened packages on the floor and left the apartment. In short, appellant performed no act which demonstrated an intent to exercise conscious dominion and control over the contents of the package.
The Majority attempts to distinguish Sterling because one of the packages in the instant case was addressed to appellant and because appellant signed receipts for the packages. (At 956). They reason that appellant might be expecting the package and, that because one package was addressed to appellant, both appellant and the sender contemplated that appellant would open the package. The fact that appellant may have expected a package is pure conjecture. Moreover, even if he did expect a package that does not lead to the inference that he expected it to contain hashish. Appellant could have expected it to contain any number of items, none necessarily hashish or contraband. Further, to assume that appellant would open the package assumes too much and is sheer conjecture. The fact is that appellant did not open the package and thus never performed the act which might have indicated the intent to exercise control over the hashish. I strongly believe that the verdict in the instant case is based upon mere conjecture and surmise. The Commonwealth failed to prove that appellant possessed the requisite intent to sustain a conviction under § 780 — 113(a)(30) of the Controlled Substance Act, supra.3 Therefore, I would vacate the judgment of sentence and order appellant discharged.
JACOBS and SPAETH, JJ., join in this dissenting opinion.. A controlled delivery is one which the police and United States post office officials agree to carry out in a predetermined way. Normally, a trusted mail carrier is selected to perform the actual delivery and the police observe his actions.
. The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, imd. effective, as amended October 26, 1972; 35 P.S. § 780-113(a)(30).
. The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 301, defines the act of possession as follows:
*330“(c) Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.”
This definition is made applicable to the Controlled Substance, Drug, Device and Cosmetic Act, supra, by The Crimes Code, supra; 18 Pa.C.S. § 107(a) which provides:
“(a) The provisions of Part I of this title (relating to preliminary provisions) are applicable to offenses defined by this title or by any other statute.”
Because the Commonwealth has failed to prove possession, an element of the offense for which appellant was convicted, he must be discharged.