Commonwealth v. Flythe , 273 Pa. Super. 248 ( 1979 )

SPAETH, Judge

dissenting:

I agree with appellant that the evidence was insufficient to convict him either of possession of an instrument of crime or of conspiracy.

To convict an accused of possession of an instrument of crime, the Commonwealth must prove beyond a reasonable doubt 1) possession by the accused of an instrument, 2) commonly used for criminal purposes, 3) under circumstances manifestly inappropriate for such lawful uses as the instrument may have, 4) with the intent to employ it criminally. Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979); Act of Dec. 6, 1972, P.L. 1482, No. 334 § 1, eff. June 6, 1973, 18 Pa.C.S. § 907. Here the Commonwealth failed to prove possession.¹

The items appellant is charged with possessing — a can of chemical mace, a tear gas gun, a wrench, and a pair of bolt cutters — were found by police under the seat of the automobile in which appellant was a passenger along with two other men and the driver. The automobile was not owned by appellant, but by a relative of the driver.

It is well-established that without more, evidence of the presence in an automobile of instruments of crime is insufficient to show that a passenger had possession of them. Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973); Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); see Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). In addition to evidence of presence, the Commonwealth must show “constructive” or- “joint” possession of the instruments by establishing that the passenger had the power to control the instruments and the intent to exercise that power. Id.

Here, appellant had the power to control the instruments, for they were within his easy reach. See Commonwealth v. Townsend, supra. To prove that appellant intended to exercise that power, however, the Commonwealth had to show that appellant knew of their presence, and there is no evidence that he did. Commonwealth v. Armstead, supra; Commonwealth v. Townsend, supra. Appellant did not own the automobile in which he was riding. The evidence that the instruments were under his seat did not prove knowledge, for the owner of the automobile, the driver, or one of the other passengers could just as well have placed them there.² The arresting officer’s testimony that appellant was “leaning forward” when the automobile was stopped is insufficient to support the inference that appellant placed the instruments under the seat.³ On this limited evidence, the Commonwealth failed to establish constructive possession. At most the Commonwealth has presented evidence of the officer’s suspicions, which is not sufficient. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973).

The Commonwealth also failed to prove a conspiracy. A conviction for conspiracy may be sustained without direct or explicit proof of an unlawful agreement. Commonwealth v. Ridgley, 243 Pa.Super. 397, 365 A.2d 1283 (1976); Commonwealth v. Armbruster, 225 Pa.Super. 415, 311 A.2d 672 (1973). Where a conspiracy is inferred from the surrounding circumstances, however, it is most often the case that the defendants are found guilty of some other substantive offense as well, and post facto proof that a conspiracy was at work is supplied by the evidence that the defendants, acting in consort, committed a crime. E. g. Commonwealth v. Kidd, 251 Pa.Super. 140, 380 A.2d 416 (1977); Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975). Where, as here, no other overt crimes have been committed, courts must exercise particular care in inferring a conspiracy from circumstantial proof alone, for it is axiomatic that a conviction for conspiracy may not rest on conjecture. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Perdie, 249 Pa.Super. 406, 378 A.2d 359 (1977). The evidence must be of the kind that would reasonably and naturally justify an inference of guilt, and must be of such a volume and quality as to overcome the presumption of innocence. Commonwealth v. Perdie, supra. Here, the Commonwealth proved only that the appellant and his companions were in a shopping center parking lot at midday, that they left the parking lot, and that the automobile in which they were riding contained instruments that might have been employed for criminal purposes. The suggestion that appellant and his companions left because they wished to avoid detection once they learned of the presence of a police officer is conjecture. Although the driver started to leave the parking lot by an entrance driveway, he was proceeding at a normal rate of speed and stopped immediately upon being signalled by the officer. These actions are at least as indicative of a lawful purpose as they are of an unlawful one.

I should reverse the judgment of sentence, and order appellant discharged.

1 . Appellant also argues that the Commonwealth failed to prove intent, but I find it unnecessary to consider this argument. In addition, I need not consider appellant’s argument that the lower court erred in denying his motion to suppress the Commonwealth’s evidence.

2 . In Commonwealth v. Whitman, 199 Pa.Super. 631, 186 A.2d 632 (1962), the court mentioned that the articles in question were found under the accused’s seat. However, the evidence regarded by the court as crucial was the defendant’s possession of gloves of the kind used by burglars, and the fact that the defendant and his companions were far from home late at night, and ostensibly going on a long trip, but the only personal luggage they carried was filled with burglar’s tools.

3 . The arresting officer originally testified that he saw appellant reaching under the seat to place something there. However, on cross-examination it appeared that the officer’s view was obstructed by a high bucket-seat, that the officer at most saw appellant leaning forward, and that it was simply the officer’s ‘.‘belief’ that appellant was placing something under the seat.