Commonwealth v. Fortune

• Decision Date: 23 April 1974
• Citation: 456 Pa. 365,318 A.2d 327
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Emma FORTUNE, Appellant.
• Court: Pennsylvania Supreme Court

318 A.2d 327

456 Pa. 365

COMMONWEALTH of Pennsylvania, Appellee, v. Emma FORTUNE, Appellant.

Supreme Court of Pennsylvania.

April 23, 1974.

Carolyn E. Temin, Villanova, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Asst. Dist. Atty., Philadelphia, for appellee.

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

OPINION

MANDERINO Justice.

Appellant Emma Fortune, on June 16, 1971, in a nonjury trial, was convicted of the illegal possession of narcotic drugs. Act of September 26, 1961, P.L.1964, § 4(q), 35 P.S. § 780--4(q). Post-verdict motions were denied and the appellant was sentenced to a term of not more than five years imprisonment. The Superior Court affirmed the judgment of sentence per curiam with a dissenting opinion by Judge Spaulding in which Judge Montgomery and Judge Hoffman joined. Commonwealth v. Fortune, 221 Pa.Super. 264, 289 A.2d 729 (1972). This appeal followed.

Appellant's sole contention is that the evidence presented by the prosecution was insufficient to establish beyond a reasonable doubt that the appellant was illegally in possession of narcotic drugs. We agree and reversed the judgment of sentence.

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. Malone, 444 Pa. 397, 281 A.2d 866 (1971). Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971). Considered in that light, the evidence, and the Reasonable inferences arising from the evidence, do not establish that the appellant was guilty of the illegal possession of narcotic drugs Beyond a reasonable doubt.

The only evidence against the appellant was the testimony of the arresting officer, the only witness at the trial. His testimony established the following facts. On the afternoon of June 15, 1970, the arresting officer and several other officers, pursuant to a search warrant, went to 2350 North Carlisle Street, a two-story private home. The first floor of the home consisted of three rooms, a living room, a kitchen and a rear shed, each next to the other in a straight line going away from and perpendicular to the street. The living room had a large window on the street side of the room. The front door of the home was near the front window and opened into the living room. The stairs to the second floor were to the right of the front door as one enters the residence. The rear portion of the living room was used as a dining area.

When the police arrived, they saw a woman (not the appellant) seated at the large living room window. The window was open and the police, from outside the residence, identified themselves and showed the search warrant to the woman at the window. The woman immediately ran away from the window, and the police proceeded, within seconds, to break down the front door. The prosecution witness was the first policeman to enter the residence. He ran directly from the front door, through the front room (living room and dining area), into the kitchen even though he testified that he did not see in what direction the woman fled. He found twenty-one packets of heroin on the floor in the doorway between the kitchen and rear shed. No one was in the rear shed or in the kitchen. Three men, and the woman seen earlier seated at the open window, were in the living room area of the front room. After the police entry, the appellant, who was wearing a robe, came downstairs, went through the living room and entered the kitchen where the arresting officer was picking up the packets from the floor. The appellant said 'Don't lock me up.' The appellant and the entire residence were searched but no other narcotics were found. The appellant was arrested after the police found letters addressed to her at the address being searched and concluded that she was the residence of the premises.

When the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious dominion over the contraband. Commonwealth v. Davis, 444 Pa 11, 280 A.2d 119 (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 this crime. Guilt by association . . . is unacceptable.' commonwealth v. reece, 437 pa....