Commonwealth v. Rodriguez

451 Pa. Superior Ct. 474 (1996) 679 A.2d 1320

COMMONWEALTH of Pennsylvania, Appellant,
v.
Luz RODRIGUEZ.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Aida RODRIGUEZ.

Superior Court of Pennsylvania.

Argued March 6, 1996. Filed June 17, 1996. Reargument Denied August 30, 1996.

Thomas Dolgenos, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

John Belli, Philadelphia, for appellees.

Before DEL SOLE, JOHNSON and CERCONE, JJ.

JOHNSON, Judge.

In these consolidated appeals, the primary question we are asked to resolve is the following: Did the trial court err in reversing its pre-trial denial of a suppression motion upon its post-verdict conclusion that defense counsel had not, as the court initially believed, conceded that the police had not violated the "knock-and-announce" rule? Because we find no error, we affirm the order granting Aida Rodriguez an arrest of judgment and discharge and the order granting Luz Rodriguez a new trial.

On the evening of April 2, 1990, two Philadelphia police officers conducted an undercover surveillance of drug trafficking in the 2900 block of North Ella Street. The officers observed a Hispanic man in a blue jacket engaging in numerous transactions with unknown persons involving exchange of cash for small objects. Another Hispanic man, in a red coat, occasionally received cash from the first man and carried it into a house located at 2928 North Ella Street. On these occasions the man soon returned and gave the first man clear plastic bags containing many small red-capped vials. The officers also observed the man in the red coat on one occasion enter and emerge from a house located at 218 East Indiana Avenue; he again supplied the first man with a bag containing vials upon exiting this house. An undercover policeman purchased two vials from the seller with a traceable ten-dollar bill; the vials contained cocaine.

The evidence thus collected was used as the basis for search warrants for the two involved houses. These warrants were executed at 7:00 p.m. on April 3, 1990. When the police arrived on the block, they immediately saw and arrested the man whom they had observed selling cocaine the day before. They also saw the man in the red coat walking with another man toward 2928 North Ella Street. The officers followed these men and apprehended the man in the red coat at the bottom of the stairs in front of the house. The other man entered the house. Officer Christina Staunton followed this man to the house, knocked on the screen door, and yelled "Police, we have a warrant." She then immediately entered.

Aida Rodriguez was in the kitchen of this house, seated at a table near a large bag containing cocaine and cash including the ten-dollar bill used by the police to purchase cocaine the night before. Further search of the house yielded a loaded gun. Luz Rodriguez, Aida Rodriguez's sister, was also present in the house when the police entered. When the officers attempted to search her, she indicated to them that she lived at 218 East Indiana Avenue (the other residence for which the police had a search warrant); the officers escorted her to that house and executed the second warrant. This search yielded drug paraphernalia and small quantities of cocaine.

Aida and Luz Rodriguez were arrested and charged with various drug and conspiracy offenses. Both women filed motions to suppress evidence and, following a hearing, the trial judge suppressed certain of Aida Rodriguez's statements to police but refused to suppress physical evidence gathered in the search of 2928 North Ella Street. The court did not make formal findings of fact or conclusions of law. The women were brought to trial before a jury as co-defendants on February 13, 1993. After trial, Aida Rodriguez was convicted of possession of a controlled substance with intent to deliver and criminal conspiracy. Luz Rodriguez was convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia.

The Rodriguez sisters filed post-trial motions requesting arrest of judgment and acquittal or a new trial based upon alleged errors in the suppression proceeding. The trial court granted these motions after review of "testimony and arguments," Trial Court Opinion, dated March 27, 1995, at 2, concluding that defense counsel had not, as the court had initially believed, conceded the issue of whether the police had complied with Criminal Rule of Procedure 2007 (requiring the officers to "knock and announce") in their search of 2928 North Ella Street. The court analyzed the substance of the suppression issue for the first time in considering and granting the post-trial motions, and concluded that physical evidence gathered at 2928 North Ella Street should have been suppressed as the fruit of an unlawful search. The court discharged Aida Rodriguez because it ruled that suppression of the evidence eliminated the possibility of establishing her guilt beyond a reasonable doubt. Luz Rodriguez was granted a new trial because of the court's rulings that: (1) the inadmissible evidence gathered from 2928 North Ella Street might have influenced the jury with regard to her culpability and (2) the court's charge to the jury with regard to the concept of joint possession was erroneous and potentially prejudicial. This appeal followed.

We note initially that the instant appeal requires us to review the reversal of the denial of Aida Rodriguez's suppression motion. The Commonwealth is thus incorrect in its assertion, see Brief of Appellant at 4, that the standard of review applicable to this appeal is the standard governing review of a denial of a suppression motion. As discussed infra, this appeal involves a situation where the trial court, in the interests of justice, returned at the post-verdict motion stage to a prior point where it had committed legal error. The trial court corrected this error by considering relevant facts and reversing its erroneous denial of the suppression motion. Our review must reflect the character of the action taken below; we therefore review for abuse of discretion in the decision to revisit the suppression issue, see infra, and review the reversal itself as though it were a grant of the motion to suppress evidence. This review is accomplished by determining "whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980), quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). In making this determination,

we consider only the evidence of the defendant's witnesses and the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.

Commonwealth v. Pickron, 535 Pa. 241, 246, 634 A.2d 1093, 1096 (1993).

The Commonwealth advances the following three contentions on appeal: (1) The trial court erred in reassessing the evidence post-verdict without regarding itself as bound by its prior factual determinations; (2) The court erred in determining that the police entry into 2928 North Ella Street violated the "knock-and-announce" rule; (3) Regardless of the propriety of the search of 2928 North Ella Street, Luz Rodriguez is not entitled to the relief granted because she had no legitimate expectation of privacy in that residence.

The Commonwealth's first contention is without merit. We first note that the trial court's reversal of its initial conclusion that the Rodriguezes had conceded the lawfulness of the entry into 2928 North Ella Street is supported by the record. See N.T., February 19, 1993, at 47, 55-56. Furthermore, while the Commonwealth is correct that the trial court would be bound at the post-verdict review stage by its own prior findings of fact, see, e.g., Commonwealth v. Johnson, 428 Pa.Super. 494, 500-02, 631 A.2d 639, 643 (1993) (en banc), the suppression court in the instant case made no factual findings concerning the Rodriguezes' claim that the police entry into 2928 North Ella Street was unlawful. The suppression court did not reach this issue because it determined that the issue was conceded as a matter of law. See Trial Court Opinion, supra, at 2. Reversal for error in the legal conclusions of a suppression court is the responsibility of the reviewing court. See Commonwealth v. Rosario, 438 Pa.Super. 241, 652 A.2d 354 (1994). The errant legal conclusion that a concession had occurred is precisely the sort of error the trial court may consider at the post-verdict motion stage. See Commonwealth v. Monarch, 510 Pa. 138, 148, 507 A.2d 74, 79 (1986) ("[W]here the suppression ruling is not supported by the record of the suppression proceeding, it is perfectly appropriate for the court, on post-verdict motions, to reverse its earlier suppression ruling."). The post-trial factual determinations the trial court made in suppressing evidence gathered at 2928 North Ella Street were not reassessments of the evidence, but were instead initial assessments required by the reversal of a legal conclusion.

The Commonwealth's second contention, that the trial court erred in concluding that the police violated the "knock-and-announce" rule at 2928 North Ella Street, was comprehensively discussed and adequately resolved by the Opinion of the trial court. After review of that Opinion, the record, the briefs of the parties, and the applicable law, we affirm the trial court's ruling on this issue on the basis of its Opinion, dated March 27, 1995, at 2-6.

Finally, the Commonwealth contends that even if the trial court was not bound by its initial suppression ruling and even if the search of 2928 North Ella Street was unlawful, Luz Rodriguez is not entitled to suppression of evidence seized there because she possessed no legitimate expectation of privacy in her sister's home. Such expectation is required for the assertion of a basis for suppression (on the grounds of an unlawful search or seizure) under the constitutions of the United States, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and Pennsylvania, see Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993).

Regarding this contention, we first note that there is no indication in either the orders appealed from or in the trial court opinion that the trial court granted Luz Rodriguez a new trial on the grounds that the evidence seized from 2928 North Ella Street should have been suppressed as to her. The trial court ruled instead that that evidence should have been suppressed as to Aida Rodriguez, Luz's sister and co-defendant. Luz Rodriguez was found guilty as "a joint possessor of the drugs found at Ella Street," Trial Court Opinion, supra, at 1, as a possessor of drug paraphernalia found at 218 Indiana Avenue, and as a possessor with intent to deliver regarding drugs seized from the Indiana Avenue residence. The trial court's grant of a new trial is supportable on the grounds that (1) the erroneous failure to suppress the 2928 North Ella Street evidence as to Aida had an obviously material and possibly extremely prejudicial effect on the resolution of the related joint possession charge against Luz Rodriguez, Aida's co-defendant; and (2) as the trial court noted, "it cannot be said that the [inadmissible] evidence did not influence or prejudice the jury ... and lead to the guilty verdict as to the contraband and paraphernalia found at Indiana Avenue." Id. at 8 (emphasis added). These circumstances are unaffected by the validity of an unlawful search and seizure claim regarding 2928 North Ella Street as to Luz Rodriguez. Furthermore, the trial court noted in its opinion that its charge to the jury on joint possession was so confusing as to warrant a new trial for Luz Rodriguez. Trial Court Opinion, supra, at 9. While the Commonwealth appears to claim that this was error, see Brief of Appellant at 28 n. 11, it fails to provide a fully developed argument on this point, relying instead on unsupported assertions and the conclusion that "the sole issue is ... whether all of the evidence was properly admitted against Luz Rodriguez." Id. We therefore deem any such claim to be waived. Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d 1176 (1994).

The decision to grant a new trial is within the trial court's discretion, and will not be reversed unless it represents an abuse of discretion. Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848, appeal denied, 527 Pa. 672, 594 A.2d 658 (1991). Based upon the above analysis, we cannot find that the trial court abused its discretion in ordering a new trial to serve the ends of justice in this case. See generally Commonwealth v. Sindel, 205 Pa.Super. 355, 208 A.2d 894 (1965).

Even if the above analysis did not govern this case, however, the grant of a new trial would be proper on the grounds that Luz Rodriguez was entitled to object to the search of 2928 North Ella Street. While "an occupant other than the owner ... [of a home must] demonstrate a significant and current interest in the searched premises in order to establish an expectation of privacy," United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984), "a defendant who is more than a casual visitor to the ... dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution ... to challenge the search and seizure of the illegal drugs which he is accused of possessing." State v. Adkins, 176 W.Va. 613, 616, 346 S.E.2d 762, 765-66 (1986); see also United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir.1988); United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986).

Since the merits of an objection to the search of 2928 North Ella Street by Luz Rodriguez were not examined below, there is not a detailed record relevant to such a claim on appeal. We can, however, discern from the record the close familial relationship between Luz Rodridguez and the owner of the searched home (her sister and co-defendant Aida), the fact that Luz was legitimately on the premises when the relevant search occurred, and the fact that Luz was charged with possessory offenses related to the evidence seized in that search. While not individually dispositive under Rakas, these considerations militate in favor of an objection by Luz Rodriguez to the search of her sister's home. See Commonwealth v. Evans, 488 Pa. 38, 40, 410 A.2d 1213, 1215 (1979)(finding that overnight guest had legitimate expectation of privacy in host's apartment); Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969)(finding that defendant had reasonable expectation of privacy in home of co-defendant's father); Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993), appeal denied, 539 Pa. 675, 652 A.2d 1321 (1994). The case of Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975), is also instructive. In that case, our supreme court affirmed an individual's standing to object to the search of his co-defendant's fiancee's home where marijuana found in that home linked the individual to a murder via a robbery of, among other things, the marijuana. The court reasoned as follows:

The prosecution by challenging the appellant['s] standing at the suppression hearing was asserting a position contrary to its position at trial. Appellant could have expressly claimed an interest in the marijuana during the suppression hearing and been protected from use of his admission at trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). But if no robbery took place, as he contended, and he had no possessory interest in the marijuana, he would have had to perjure himself to obtain standing. Under these circumstances, the prosecution cannot challenge [appellant's] standing by claiming he had no interest in the marijuana.

Weeden, supra, at 450-51, 322 A.2d at 351. Similarly, in this case the prosecution maintained that Luz Rodriguez had joint possession and dominion of the drugs at North Ella Street; indeed, that she and her sister controlled the drugs and contraband there as part of a drug-dealing scheme. Such a circumstance, if true, would militate strongly in favor of Luz Rodriguez's objection to the search of her sister's home. See Govens, supra, at 471-72, 632 A.2d at 1319 (finding nothing to support claim that defendant lacked standing under Rakas to challenge search where defendant "was present when the police entered ... had been engaged in selling cocaine from the apartment and ... apparently had dominion and control over the apartment as well as the cocaine and other evidence that was seized."). Of course, if Luz Rodriguez did not have such dominion and control, any assertion of standing on her part would be weakened. That circumstance, however, would also be inconsistent with the prosecution's substantive position. Weeden was decided before Rakas, but Rakas does not alter the status of the factors present in the instant case as indicia of a legitimate interest in the privacy of searched premises. While no bright line demarcates the set of cases involving legitimate expectations of privacy, there seems little doubt on this record that Luz Rodriguez had such expectations in the home of her sister in this case. This analysis provides an independent reason to affirm the trial court's grant of a new trial to Luz Rodriguez based upon suppression of the evidence taken from 2928 North Ella Street.

Based on the foregoing, we affirm the order granting Aida Rodriguez an arrest of judgment and discharge and the order granting Luz Rodriguez a new trial.

Orders AFFIRMED.

APPENDIX

COURT OF COMMON PLEAS PHILADELPHIA COUNTY

Commonwealth of Pennsylvania

vs.

Aida Rodriquez

CP XXXX-XXXX, 4540

Commonwealth of Pennsylvania

vs.

Luz Rodriquez

CP XXXX-XXXX, 4537, 4538

OPINION

The above two defendants were brought to trial as codefendants under the above captioned terms and bill of information numbers on February 23, 1993. Defendant Aida Rodriquez was charged with possession of a controlled substance with intent to deliver and criminal conspiracy. Defendant Luz Rodriquez was charged with possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. She was not charged with conspiracy. A jury found each Defendant guilty of all the charges — Defendant Aida Rodriquez with reference to drugs found at 2928 North Ella Street and conspiring to possess drugs at Ella Street with persons other than codefendant Luz Rodriquez; Defendant Luz Rodriquez with reference to drugs found at 218 E. Indiana Street, as a joint possessor of the drugs found at Ella Street, and of possessing drug paraphernalia at 218 E. Indiana Street.

Defendants filed post-trial motions asking for Arrest of Judgment and Acquittal and/or a new trial. A Judgment of Acquittal will be ordered for Aida Rodriquez. A new trial will be ordered for Defendant Luz Rodriquez.

I. Aida Rodriquez

In reconsideration, the Court concludes that it erred in denying Aida Rodriquez's Motion to Suppress the evidence seized based on the faulty execution of a search warrant by Philadelphia Police Officers. After reviewing the testimony and arguments, the Court now concludes that it may have misconstrued certain statements made by defense counsel in argument which led the Court to believe defense counsel had conceded the issue on whether the police officers complied with Criminal Rule of Procedure 2007, requiring the officers to "knock and announce."

A review of the testimony makes clear that defense counsel did not concede this issue but, instead, focused argument on other matters. For this reason, and the following legal analysis, the Court reverses its decision, thereby granting defendant Aida Rodriquez's Motion to Suppress all physical evidence seized as a result of the illegal entry. Following this conclusion, the verdict against her must be vacated, because absent the evidence, no case beyond a reasonable doubt can be made out against her.

Criminal Rule of Procedure 2007, Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution, requires police officers to "knock and announce" when executing a search warrant, allowing for a reasonable period of time for response from the occupants of the premises. If there is no response after the lapse of such reasonable period of time, the police may forcibly enter the premises.

The case law, however, allows for certain exceptions to this standard. In Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991), the Pennsylvania Supreme Court enunciated four such exceptions. Police may override the knock and announce rule if "1) the occupants remain silent after repeated knocking and announcing; 2) the police are virtually certain that the occupants of the premises already know their purpose; 3) the police have reason to believe that an announcement prior to entry would imperil their safety; and 4) the police have reason to believe that evidence is about to be destroyed." Id., 598 A.2d at 541. See also Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992). None of these exceptions are applicable in this case.

Police Officer Staunton, in her direct testimony on the Motion to Suppress, testified as follows:

Q: [By the Assistant District Attorney] What happened next?

A: We went to 2928 Ella Street where I had observed the male in the red jacket, Julio Rodriquez, and an unidentified male going towards 2928. When we stopped, Officer Brosman, he grabbed Julio Rodriquez, wearing a red jacket. I then proceeded up the steps. The screen door had closed. The unidentified male had already entered the premises.

Q: How had that male entered the premises?

A: I knocked on the screen door. I yelled "police, we have a warrant." And I immediately went in ... (Emphasis added.) (2/19/93, N.T., pgs. 24-25).

Officer Staunton further testified that the premises was a brick rowhouse with a metal screen door (2/19/93, N.T., p. 16); that when she got to the front steps of the premises she could look directly into the house; that she could see six male individuals in the living room and defendants Luz and Aida Rodriquez along with a younger Hispanic female and an older Hispanic female seated at the kitchen table. (2/19/93, N.T., p. 31).

The only testimony that could give rise to an inference of one of the listed exceptions was Officer Staunton's testimony on cross examination, as follows:

Q: [By Ms. Purnell for Aida Rodriquez] Particularly in this case where you had a suspect fleeing into the premises you were concerned for your safety?

A: That's correct.

(2/19/93, N.T., p. 32). In and of itself, the above does not satisfy the burden upon the Commonwealth to prove an exception to the "knock and announce" rule. Commonwealth of Pennsylvania v. Beard, 501 Pa. 385, 461 A.2d 790 (1983) cited by the Commonwealth is inapposite because there not only were the occupants outside and who had gone inside but one of them shouted "police".

The testimony makes clear that the officer's entry into the premises was simultaneous with her knock and announcement of her presence as required by Rule 2007. See Commonwealth v. Rudisill, 424 Pa.Super. 313, 622 A.2d 397 (1993) (Penn. knock and announce rule violated where forcible entry occurred after knock but simultaneous with identification as police officers); See also Commonwealth v. Bull, 422 Pa.Super. 67, 618 A.2d 1019 (1993) (forcible entry simultaneous with knock and announce, deemed illegal).

Secondly, the argument that officers were in hot pursuit of a suspect who was entering the house must be rejected. The testimony, at best, from the Commonwealth's point of view is unclear on this point. The evidence does not show that the unidentified male was aware of a police presence. If the officers were in hot pursuit of a suspect, there would have been no reason for the police officers to knock and announce. They could have simply entered on the heels of the alleged criminal. Therefore, a hot pursuit or exigent circumstances exception to the Rule must be rejected.

Finally, any allegation of danger to safety, although barely raised, is not convincing beyond a preponderance of the evidence. Again, under limited circumstances, police may disregard the knock and announce rule where they believe that announcing themselves "would imperil their safety." Commonwealth v. McDonel, 411 Pa.Super. 187, 601 A.2d 302, 306 (1991). But, in McDonel, the Court was unwilling to create a presumption that "exigent circumstances sufficient to do away with the knock and announce rule [would] exist any time a search for drugs is conducted." Id.

Essentially, such a presumption would entail an assumption that every time a crime involved drugs, weapons were likely to be present, thereby endangering the officers lives. This type of presumption, the Court opined, was much better left to careful studies by the legislature. Allowing a court to take judicial notice of the presence of weapons does little to protect an officer and does great harm to the protections afforded to citizens under the Constitution. See also Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991). It must be remembered that the rationale for requiring a time lapse and a requirement that the police knock and announce themselves is to give the occupants of the premises sufficient time to reflect and surrender the premises peacefully. This concept guarantees that occupants will not have resisted because they are unaware it is police who are going to enter.

As a result, the execution of the search warrant failed to meet the standards prescribed by Rule 2007.

II. Luz Rodriquez

The entry into 2928 North Ella Street was unlawful. However, a valid search warrant existed for the home of Luz Rodriquez located at 218 East Indiana Street. Within its four corners, it demonstrated probable cause that the contraband would be found there.

Defendant argues that the search warrant 68892 lacked probable cause upon its face because the name of the occupant or owner of the premises was seemingly unrelated or unconnected to Luz Rodriquez and not sufficiently described. Defendant asserts that the inclusion of facts identifying owners or occupants as a Hispanic male, a description of his age and weight and clothing, and that he was on those premises, makes the search warrant relating to Luz Rodriquez unlawful. We reject that argument for the following reasons.

There is no requirement that a search warrant specifically state by name the owner of the premises. The only requirements are that the affidavit of probable cause include "a) the date and time of issuance; b) specific identification of the property to be seized; c) name or description with particularity the person or place to be searched ..." Rule 2005, 42 Pa.C.S.A. A description of the place to be searched does not mandate that the affidavit include any specific or certain description. It only requires a description with particularity, a standard met in this case.

Neither Luz nor Aida Rodriquez or any other person need be mentioned in the warrant. Other persons were described along with an acceptable description of the premises to be searched and a connection or relationship between such males and the premises is set forth in the affidavit of probable cause.

The above arguments are common to the affidavits for both Aida and Luz Rodriquez. The affidavits of probable cause are virtually identical. Without elaborating, we conclude that given the totality of the circumstances described and applying a common sense interpretation, it is more likely than not that contraband will be found on the premises. See Commonwealth v. Pleummer, 421 Pa.Super. 51, 617 A.2d 718 (1992).

Defendant Luz Rodriquez argues that the illegal entry into 2928 North Ella Street led to the search of 218 E. Indiana Street and, therefore, all evidence seized in this second search must be suppressed as "fruit of the poisonous tree."

However, the validity of the search warrant for 218 E. Indiana Street on its face negates a "fruit of the poisonous tree" argument since it created an independent source for the search and seizure of the contraband found. Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990). It was inevitable that the contraband would have been seized at 218 E. Indiana Street. Whether Luz Rodriquez's consent was valid or not is immaterial.

Given our conclusion that the evidence seized from Indiana Street was proper, the following issues must be addressed:

First, was that evidence in and of itself sufficient to support the jury's verdict against her as to the drugs and drug paraphernalia found there?

Secondly, are there other factors that require a new trial rather than entering a Judgement of Sentence based on the quantity found at 218 E. Indiana Street (and the paraphernalia)?

Briefly, in support of the sufficiency of the evidence, there is the quantity, its scattered sites throughout the premises, Defendant's knowledge as to where these items were located, indicia of Luz Rodriquez's occupancy and/or control of the premises such as a gas bill in her name and a letter from the Department of Welfare addressed to Luz Rodriquez, her possession of a key to the premises and the presence and abundance of adult female clothing there.

However, here the jury also convicted Defendant Luz Rodriquez of possession of the contraband at Ella Street on a joint possession theory; that is, that Luz and Aida Rodriquez jointly and constructively possessed the contraband there. Since we have concluded that evidence should have been suppressed and not gone to the jury, it cannot be said that that evidence did not influence or prejudice the jury against Luz Rodriquez and lead to the guilty verdict as to the contraband and paraphernalia found at Indiana Street.

In light of the above, it appears unnecessary to address in any detail Defendant Luz Rodriquez's other arguments concerning the validity of her consent to search Indiana Street, and that the Court's charge on joint possession was erroneous or at least materially misleading. We will note only that we conclude that Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992) is distinguishable from the facts here.

We will also note that the Trial Court's charge may have given the jury the impression that it had to join the guilt or innocence of Defendant Luz Rodriquez together with that of her codefendant Aida Rodriquez.

In addition to the general charge regarding joint possession, the Court stated the following:

In Common English language, I guess reduced to the bottom line is was it theirs to do with? Or was it someone else's to do with? Did these people have the power and the intent to control the destiny of the controlled substance, or in the case of Luz Rodriquez, the drug paraphernalia? Or was it for someone else to have that power and intent? It's not just a question of power, it's also a question of intent to exercise that power. (N.T. 3/1/93, pp. 388-389.)

Upon review of the Court's charge, in toto, together with the language cited above, it cannot be said that the jury understood clearly that the guilt or innocence of Luz Rodriquez was not wed to the guilt or innocence of codefendant Aida Rodriquez with respect to the contraband at Ella Street. Commonwealth v. Tyler, 495 Pa. 662, 435 A.2d 1212 (1981) and cases cited therein are controlling.

Appropriate Orders will issue.

BY THE COURT: /s/ Samuel M. Lehrer SAMUEL M. LEHRER, J. 3/29/95