Commonwealth v. Armstead

• Decision Date: 23 May 1973
• Citation: 305 A.2d 1,452 Pa. 49
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Christopher ARMSTEAD, Appellant.
• Court: Pennsylvania Supreme Court

305 A.2d 1

452 Pa. 49

COMMONWEALTH of Pennsylvania, Appellee, v. Christopher ARMSTEAD, Appellant.

Supreme Court of Pennsylvania.

May 23, 1973.

Vincent J. Ziccardi, Defender, Francis S. Wright Jr., Steven G. Farber, Asst. Defenders, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Judith Dean, Philadelphia, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

Appellant Christopher Armstead, was charged with the unlawful possession of a firearm. He was tried by a judge without a jury and found guilty of the charge. Post-trial motions were argued and denied, and appellant was sentenced to pay a fine of $100 and the cost of prosecution. The Superior Court affirmed the judgment of sentence in a per curiam order. 221 Pa.Super. 734, 289 A.2d 249. We granted allocatur.

The sole issue raised by this appeal is whether the evidence was sufficient to sustain a verdict. The facts of this case are as follows:

Philadelphia police officers, on the basis of information received by them, stopped an automobile in which appellant was a passenger and requested that both the driver, Thomas McIntyre, and appellant get out of the car. The original arresting officers did not observe any weapon. However, while appellant was onthe sidewalk, next to the car, another police vehicle arrived on the scene. One door of the car was open and the interior lights were on, enabling the police in the second vehicle to observe a .38 caliber automatic pistol lying in the middle of the front seat. The defense counsel and the district attorney entered into a stipulation that of one Liz Rivers were to be called to testify, she would have testified that it was she who had originally notified the police on the day of the incident that her husband, Russell Rivers, had a gun on his person and was driving a car with the license number of the car in which appellant was a passenger. She would have further testified that after the arrest, she went to the police station and informed the police that the gun belonged to her husband and not to appellant. Russell Rivers was not in the car at the time of the arrest.

Appellant contends that there was insufficient evidence of possession. In Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968), we held that mere presence in an automobile in which a weapon is found is not sufficient to prove that a defendant-passenger is in possession of the weapon. In order to show joint possession, the Commonwealth must show that the defendant has '. . . the power of control over the weapon and the intention to exercise this control.' 428 Pa. at 284, 237 A.2d at 194. Cf. Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971).

The Commonwealth had no direct proof that appellant knew of the presence of the weapon, which would be required to prove that he had the necessary intention to exercise control. Instead, relying on the testimony that the original arresting officers failed to observe the weapon when they initially stopped the automobile, the Commonwealth sought to prove by inference that the weapon must have been on the front seat, next to appellant, during the time when he was a passenger and that he would, therefore, have known of its...