Commonwealth v. Mudrick

507 A.2d 1212, 510 Pa. 305, 1986 Pa. LEXIS 759

• Court: Supreme Court of Pennsylvania
• Decided: April 10, 1986
• Docket: 102 Eastern District Appeal Docket, 1985
• Status: Published

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

The Commonwealth appeals by allowance a Superior Court order reversing appellee’s convictions for possession of marijuana, possession of cocaine, and possession of marijuana and cocaine with intent to deliver. 508 A.2d 341 (1984). The only issue presented is whether the evidence presented by the Commonwealth was sufficient to establish constructive possession. We hold that it was and reverse Superior Court.

Early in the afternoon of May 8,1981, local police officers and narcotics agents from the Attorney General’s office arrived at the residence of a Sandra Dietz, 2103 Vacation Lane, Stillwater Lake, Pocono Summit, Pennsylvania. They intended to serve a New Jersey fugitive warrant on her. They knocked; appellee answered the door. After the officers explained their purpose, he told them that Ms. Dietz was sleeping in the bedroom and directed them to it. Appellee was wearing only a pair of blue jeans. Some of the officers entered the bedroom, woke her, and placed her under arrest. Ms. Dietz was taken to the District Magistrate after dressing and using the bathroom. Appellee told another officer that he lived with Ms. Dietz and they were going to be married. He also mentioned that one of the dogs on the premises was his. The officers saw a box of what they believed to be marijuana on the living room coffee table. Appellee was ordered to sit down; he sat within two feet of the contraband. One officer remained on the premises with appellee while others obtained a search warrant. While waiting for the officers to return, appellee got up, walked into the kitchen and helped himself to a cold drink from the refrigerator. At about 3:00 P.M. the officers returned with a search warrant for the residence. In addition to the box on the coffee table, they found what proved to be cocaine in the bedroom and the study. The suspected contraband was confiscated and appellee was arrested. He retrieved his clothes from the bedroom in which Dietz had been sleeping. This was the only room in the residence in use as a bedroom. Subsequent chemical analysis showed that the substances seized were marijuana and cocaine.

At trial, appellee presented evidence that he actually lived in Blakeslee in the home of one Patrick Simonik, and that he paid room and board to Simonik and took meals there. A jury found appellee guilty of possession of marijuana and cocaine¹ and possession of marijuana and cocaine with intent to deliver.² Post-trial motions were denied. Monroe County Common Pleas imposed a total sentence of five to twelve months. Superior Court reversed. In a memorandum opinion, the panel held that the Commonwealth proved no more than appellee’s presence at the scene, and the evidence was insufficient to establish constructive possession.

When reviewing for sufficiency of the evidence, an appellate court may not substitute its judgment for the jury’s. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983). It must view the evidence in the light most favorable to the verdict winner, here the Commonwealth, and draw all reasonable inferences that evidence permits in favor of the verdict winner. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

Clearly the Commonwealth could not show actual possession of the contraband. Its case was based on constructive possession. Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our lower courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.

To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). We took a further step toward resolving these problems in Commonwealth v. Macolino, supra. In Macolino, contraband and otherwise legal items used in the drug trade³ were found in the common bedroom of the Macolinos, a married couple. We held that “constructive possession can be found in one defendant when both the husband and wife have equal access to an area where the illegal substance or contraband is found.” 503 Pa. at 208, 469 A.2d at 135. See also Commonwealth v. Carroll, 510 Pa. 299, 507 A.2d 819 (1986).

Though the facts here do not precisely mirror those in Maco lino, they are similar and the issue again concerns constructive possession in an area of joint control. We hold today that even absent a marital relationship constructive possession may be found in either or both actors if contraband is found in an area of joint control and equal access. The marital relationship per se was not critical to the Macolino analysis; shared access to and control of the area where the contraband was found was critical.

Here there was evidence that appellee lived in the residence⁴ and shared the bedroom with Ms. Dietz.⁵ From this evidence, the factfinder could find joint control over and equal access to the area where the cocaine was found, the bedroom. Given the totality of the circumstances, i.e., joint control and equal access and evidence that the cocaine was found in plain view, the jury could have found constructive possession.

The box of marijuana found on the living room coffee table can be analyzed in the same manner. Though one’s bedroom is generally considered to be a more private area than the living room or kitchen, we do not find that distinction persuasive here. There was no evidence that anyone other than appellee and Ms. Dietz occupied the premises or that anyone else was present when the officers arrived. The control and access enjoyed by each actor in the bedroom, therefore, seems undiminished in the living room. The jury could properly find that Ms. Dietz and appellee not only shared the bedroom but the whole residence. Analyzing all the circumstances, it could infer appellee’s constructive possession of the marijuana which was openly accessible to him on the living room coffee table.

Therefore, the order of Superior Court is reversed and the judgments of sentence imposed by the Monroe County Court of Common Pleas are reinstated.

ZAPPALA, J., files a dissenting Opinion.

1 . Controlled Substance, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, 35 P.S. § 780-113(a)(16).

2 . Id., 35 P.S. § 780-113(a)(30).

3 . A drug packaging device and an electronic telephone surveillance detector were found in plain view in the bedroom. The contraband and drug books were located in the closet. A cocaine cutting substance was found in the attic.

4 . Appellee told an officer that he lived there; he claimed ownership of one of the dogs on the premises; some of his clothes were in the premises; and he freely helped himself to the refrigerator. In addition, appellee told the officer that he planned to marry Ms. Dietz. N.T., July 6, 1982, 14-21.

5 . Appellee retrieved his clothes from the bedroom. N.T. 21. No other room in the residence was in use as a bedroom. N.T. 10-11.