Commonwealth v. Wisor

Opinion by

Van deb Yoobt, J.,

Appellant was tried and found guilty by a judge sitting without a jury of possession of a controlled substance (Marijuana) in violation of “The Controlled Substance, Drug, Device and Cosmetic Act,” April 14, 1972, P.L. 283, No. 64, Section 13, as amended. He was sentenced to pay a fine of $200.00 and the costs of prosecution from which judgment of sentence he takes this direct appeal.

On July 15, 1972, a Middletown Township police officer was patrolling at the rear of a local shopping center. Investigation was made when he observed an apparently unoccupied sedan, music being audible through the car’s open windows. A female was found to be present in the car. Shortly thereafter the officer located himself approximately 155 feet from the car and observed it for ten minutes. He observed a number of people arrive at the automobile and depart. At a point in time when the vehicle began to leave, the officer made his presence known and asked for the license and registration of the driver, appellant herein. The occupants of the car were requested to egress, whereupon the officer found a corn cob pipe with marijuana (later so identified) residue located in the crevice at the rear of the front seat, having become visible when the back of said seat was moved forward for egress. Further investigation yielded other marijuana residue within the car, and a plastic bag containing the substance on the ground approximately five inches from the right-side door. The occupants of the car were arrested.

The trial of the driver-owner of the car, the appellant herein, was held on February 22, 1973. It is clear from the testimony and from the lower court’s opinion, subsequently filed, that the trial judge based his finding of guilt on the control which defendant-appellant had over the corn cob pipe. Timely motions in arrest of judgment and for new trial were filed.

The sole question on appeal is whether appellant did exercise sufficient possession and control over the pipe. We are well aware of the plethora of cases which hold that the mere location of illegal matter in proximity to a number of individuals is insufficient to find joint or several possession by such individuals. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 870 (1971); Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973). Nor can mere knowledge of the presence of illegal material support a finding of guilt as to possession thereof. Commonwealth v. Sungenis, 223 Pa. Superior Ct. 517, 303 A.2d 524 (1973). Analysis of these holdings indicates to us that the Court decided that the factors presented therein, standing alone, did not establish joint or several possession.

The facts in the instant case, however, indicate the coalescence of many factors. Defendant-appellant was the owner of the automobile and as such could exercise all manner of control over the car. His control is further indicated by the fact that he occupied the driver’s seat, and did begin to drive the car. Because of the small area encompassed by an automobile, any individual therein must be presumed to understand the manifestations of the other occupants’ actions and import of the others’ conversations. It may be inferred that appellant knew of the presence of the pipe. Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 186 A.2d 632 (1962). The short distance across a car’s front seat does not place an article hidden in the crevice behind the passenger’s location beyond the sphere of control and the exercise thereof of one sitting in the driver’s location. Based on these many facts, we find that appellant had the power of control over the pipe, could have exercised dominion over it, and, by knowing what activity was under way in the auto at the time, is held to the knowledge of the presence of the controlled substance.¹ The fact that the trial judge concluded that appellant could not control the articles of contraband other than the pipe, and that such were as easily in the possession of the other occupants, is not persuasive in light of the substantial testimony as to appellant’s ownership and control over the car, his knowledge of what transpired within his car, and his ease of access to the pipe.

In his able opinion in Commonwealth v. Ferguson, 231 Pa. Superior Ct. 327, 331 A.2d 856 (1974), Judge Spaeth carefully noted the requirements for finding guilt as to possession. In that case an owner of a garage wherein heroin was found was adjudged guilty of possession because of the unlikelihood that others would secrete the contraband in such out-of-the-way places. We do not infer that the location of the pipe in the instant case was out-of-the-way for others in appellant’s car. But we do hold that an owner of a building or automobile who exhibits his control thereover by restricting entry into the building or occupying the driver’s seat and driving his car, has sufficient possessory interest in his property, once his knowledge of the presence of the contraband is established or inferred, to support his guilt on a charge of possession of that contraband. Therein is the similarity between this case and Commonwealth v. Ferguson, supra, and we believe that the conviction in this case is supportable for like reasons.

Judgment of sentence affirmed.

Jacobs, J., concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.

1 It would be ludicrous to hold that tho law was such that where two or more persons get together and have a “party” with drugs in direct violation of the criminal law no one could be held responsible because the factfinder at the trial could not infer who possessed the drugs even though the owner of the premises was present at the “party”.