Com. v. Chenet

• Decision Date: 01 December 1975
• Parties: COMMONWEALTH of Pennsylvania v. Richard P. CHENET, Appellant.
• Court: Pennsylvania Superior Court

Page 502

352 A.2d 502

237 Pa.Super. 226

COMMONWEALTH of Pennsylvania v. Richard P. CHENET, Appellant.

Superior Court of Pennsylvania.

Dec. 1, 1975.

Application for Allocatur Granted March 26, 1976.

John Alan Havey, Aliquippa, for appellant.

Joseph M. Stanichak, Dist. Atty. (submitted), Aliquippa, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge.

The appellant, Richard P. Chenet, was charged with possession of marihuana and was convicted by a jury. He subsequently filed a motion for a new trial alleging trial errors and a motion in arrest of judgment arguing that the evidence was insufficient to sustain the verdict. The court granted the motion for a new trial because of improper comments made by the prosecutor; but refused the motion in arrest of judgment. The defendant has appealed from the refusal of the arrest of judgment. ¹

The facts reveal that deputy sheriffs in Beaver County received information from a confidential informant that the appellant had a large quantity of marihuana in his trailer located in a trailer camp in Raccoon Township. Using this information the sheriffs obtained a search warrant. ² The sheriffs then proceeded to the trailer to execute the warrant. Upon arriving, the sheriffs found no one present and waited until the return of appellant's roommate at which time they proceeded to search the dwelling. They found a small quantity of marihuana seeds on the kitchen floor, a bag containing marihuana residue in a trash barrel in the trailer and four marihuana cigarette butts in the living room. In a metal milk box sitting on the trailer hitch outside the trailer the sheriffs found four bags each containing 20 grams of marihuana.

The sheriffs then waited for the appellant to return. Several hours later the appellant drove up alone in a sports car belonging to his attorney. Appellant was placed under arrest. The sheriffs thereafter obtained another warrant to search the car, and the subsequent search revealed two marihuana cigarettes in the unlocked compartment between the two front seats.

'In passing upon such a motion (in arrest of judgment), the sufficiency of the evidence must be evaluated upon the Entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove.' Commonwealth v. Ingram, 440 Pa. 239, 249, 270 A.2d 190, 195 (1970), Quoting Commonwealth v. Winebrenner, 439 Pa. 73, 77--78, 265 A.2d 108, 111 (1970) (emphasis original).

Because the marihuana was not found on the person of appellant, constructive possession must be established by the Commonwealth. Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). Also there was evidence that while appellant rented the trailer, he shared its occupancy with another individual. Under these circumstances we must recognize that 'the fact of possession loses persuasiveness if persons other than the accused had equal access to the place in which the contraband was found.' Commonwealth v. Ferguson, 231 Pa.Super. 327, 333, 331 A.2d 856, 860 (1974). When as in the present case, another individual has equal access to the area where the drugs are found, the Commonwealth may obtain a conviction if it can prove joint constructive possession. See Commonwealth v. Carter, 230 Pa.Super. 236, 326 A.2d 480 (1974); Commonwealth v. Walley, 225 Pa.Super. 465, 310 A.2d 381, Allocatur refused, 225 Pa.Super. Xlii (1973). To establish joint constructive possession the Commonwealth must show that the appellant had knowledge of the presence of the drugs and the intent to exercise control over them and these elements may be inferred from the totality of the surrounding circumstances. Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974).

Although a defendant's presence in the area where the drugs are found is usually held to be sufficient to demonstrate his knowledge of the drugs, other circumstances are necessary to link the defendant with the drugs in order to obtain a conviction for possession. See Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973). In Commonwealth v. Ambers, supra, this Court found the defendant's being under the influence of heroin to be an additional circumstance along with his presence at the scene to connect him with possession of the drugs. In Commonwealth v. Carter, supra, defendant's attempt to enter a room where the drugs were found after his co-defendant had shouted to 'get rid of the stuff' was considered a sufficient circumstance to find the defendant guilty of possession. In Commonwealth v. Walley, supra, the evidence established a concert of action among the defendants by their movements into an apartment where a sizeable supply of heroin was located. In addition, the appellant in Walley had a large sum of money on his person. Similarly in Commonwealth v. Wisor, 231 Pa.Super. 339, 331 A.2d 861 (1974), we found the evidence sufficient to convict the defendant of possession where a pipe with a residue of marihuana was found in the crevice at the rear of the front seat of a car owned and operated by the defendant in spite of the fact that the car was occupied by several other persons. See also Commonwealth v. Griffin, supra, (conviction affirmed where drugs found in trunk of car owned and operated by defendant although there was another passenger in the car at the time).

In the present case marihuana was found in the ashtray and trash barrel in the living room of the trailer shared by appellant and his roommate. Marihuana seeds were also found on the kitchen floor and a sizeable amount of marihuana was found in the milk box attached to the trailer post. There was no evidence of any other persons living in the trailer besides appellant and his roommate. See Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974). Nor was there evidence that some visitor may have left the marihuana in the trailer. 'If, . . ., the contraband is found in a place usually only accessible to the defendant, it can be reasonably inferred either that he put it there himself, or if others did, that he knew of its presence.' Commonwealth v. Ferguson, supra, 231 Pa.Super. at 334, 331 A.2d at 860. We find that the evidence was sufficient for the jury to infer that appellant was aware of the presence of marijuana in the trailer.

We believe that there is an additional circumstance involved in this case which permits the drawing of the inference that appellant had the corresponding intent to exercise control over the drugs found in the trailer. Returning to the facts of the instant case, we observe that after the search of the trailer was conducted appellant arrived in a sports car that was owned by his attorney. A search of that car revealed the presence of two marihuana cigarettes in the console compartment between the two front seats. Our Court has recently upheld a sufficiency of the evidence challenge in a case where a bag of heroin was found on the floor of the driver's side of a car and the defendant was the driver and sole occupant of a car but apparently not the owner. Commonwealth v. Wright, 234 Pa.Super. 83, 339 A.2d 103 (1975). Even if we were to view the marihuana found in the car as insufficient standing alone to show possession, we feel that when this evidence is considered in conjunction with the quantity of marihuana found in and around the trailer it presents the additional circumstance that would justify the inference that appellant had the intent to exercise control over the drugs in the trailer. Especially appropriate to this case is the following quotation from Commonwealth v. Gladden, 226 Pa.Super. 13, 18, 311 A.2d 711, 713 (1973):

'Individually, the circumstances may not be of decisive import. But in combination, we believe, they would justify a deduction by a trier of facts that the (defendant) was aware of the items in question.'

Where illegal drugs are found not only in appellant's residence but also in the car in which he was the sole occupant, we rule that the circumstances are sufficient to permit the jury to draw the inference that appellant had knowledge of the drugs and the intent to control them.

Order affirmed.

HOFFMAN, J., files a dissenting opinion in which CERCONE and SPAETH, JJ., join.

HOFFMAN, Judge (dissenting):

Appellant was found guilty by a jury of possession of marijuana. ¹ Motions in arrest of judgment and for a new trial were argued before the court below en banc. The court granted the motion for a new trial on the basis of improper prosecutorial comment during closing argument, but denied the motion in arrest of judgment. This appeal was taken from the denial of the motion in arrest of judgment.

The circumstances leading to appellant's arrest and conviction are these. On May 19, 1973, a search warrant was issued for a trailer jointly occupied by appellant and his roommate. At approximately ten o'clock p.m., three deputy sheriffs arrived at the trailer park and waited to execute the warrant for twenty minutes until appellant's roommate returned with a female companion. The warrant was served and the ensuing search produced a small quantity of marijuana seeds on the floor of the kitchen, several marijuana cigarette butts in an ash tray in the living room, and a clear plastic bag with marijuana residue in a wooden nail keg in the living room. The sheriff's deputies extended their search outside the trailer and found four plastic bags containing a total of eighty grams of marijuana. The four bags were found in a metal milk delivery box attached to the trailer hitch. The search was concluded at approximately eleven-thirty p.m.

The deputies waited until appellant returned home at approximately one-fifteen in the morning. Appellant was placed under arrest, and the deputies asked...