possession privilege in Pennsylvania

2021He is still a person convicted of [a] crime, and the expressed intent of the court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Wendowski, supra at 630 (emphasis in original) (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)). -9- J-E02004-20 Indeed, probation is a “privilege” not a “right.” Id.

2021He is still a person convicted of [a] crime, and the expressed intent of the court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Wendowski, supra at 630 (emphasis in original) (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)).

2021He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Burns v. United States, 287 U.S. 216, 222 [] (1932). [] Wendowski, 420 A.2d at 630 (additional citations omitted).

2019The Ware court emphasized, “[T]he expressed intent of the [c]ourt to have [a defendant] under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’” Ware, 737 A.2d at 254 (quoting Burns v. United States, 287 U.S. 216, 222 (1932)).

2021He is still a person convicted of [a] crime, and the expressed intent of the court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Wendowski, supra at 630 (emphasis in original) (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)). -9- J-E02004-20 Indeed, probation is a “privilege” not a “right.” Id.

2021He is still a person convicted of [a] crime, and the expressed intent of the court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Wendowski, supra at 630 (emphasis in original) (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)). -9- J-E02004-20 Indeed, probation is a “privilege” not a “right.” Id.

2019The Ware court emphasized, “[T]he expressed intent of the [c]ourt to have [a defendant] under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’” Ware, 737 A.2d at 254 (quoting Burns v. United States, 287 U.S. 216, 222 (1932)).

2016He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not “change his position from the possession of a privilege to the enjoyment of a right.” Id. at 253-54 (emphasis in original) (citations omitted).

2019Commonwealth v. Hoover, 909 A.2d 321, 323-24 (Pa.Super. 2006) (internal quotation marks and citation omitted; emphasis in original) (quoting Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980)).

2017Commonwealth v. Hoover, 909 A.2d 321, 323 (Pa.Super. 2006) (quoting Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980)) (emphasis in original, internal quotation marks omitted).

2018See, e.g., State v. Gilstrap, 235 Ariz. 296 , 332 P.3d 43 (2014) (search of visitor’s purse not in her possession was proper); State v. Leiper, 145 N.H. 233 , 761 A.2d 458 (2000) (warrant authorizing search of premises included authority to search visitor’s knapsack where knapsack was not in visitor’s possession); State v. Jackson, 873 P.2d 1166 (Utah Ct. App. 1994) (search of visitor’s purse that was not in visitor’s possession was proper)[.] As noted by the Gilstrap Court: -6- J-S22043-18 The possession test provides a bright-line rule that is clearly and easily applied.

2018See, e.g., State v. Gilstrap, 235 Ariz. 296 , 332 P.3d 43 (2014) (search of visitor’s purse not in her possession was proper); State v. Leiper, 145 N.H. 233 , 761 A.2d 458 (2000) (warrant authorizing search of premises included authority to search visitor’s knapsack where knapsack was not in visitor’s possession); State v. Jackson, 873 P.2d 1166 (Utah Ct. App. 1994) (search of visitor’s purse that was not in visitor’s possession was proper)[.] As noted by the Gilstrap Court: -6- J-S22043-18 The possession test provides a bright-line rule that is clearly and easily applied.

2019Ware, 737 A.2d at 253 -54 (quoting Commonwealth v. Dickens, 475 A.2d 141 (Pa. Super. 1984)) (emphasis in original).

1999Id. at 456, 420 A.2d at 630 (emphasis in original)[.] Id. 475 A.2d at 144 (additional citations omitted). ¶ 10 Further, this court has previously agreed that a term of probation: may and should be construed for revocation purposes as including the term beginning at the time probation is granted.

2025We must account for the distinction between civil and criminal verdicts, as well as the idiosyncratic process that the trial court used in the case at bar. 17 Commonwealth v. Peters, 218 A.3d 1206 , 1209 (Pa. 2019). 18 See Commonwealth v. Townsend, 237 A.2d 192, 195 (Pa. 1968). 19 Verdict Slip, 10/14/2021, at 4 (R.R. at 69). 20 See also Commonwealth v. Dixon, 997 A.2d 368, 381-82 (Pa. Super. 2010) (conducting merger analysis for convictions under Sections 6105 and 6106 and observing no distinction between “possesses” and “carries”); Commonwealth v. Magwood, 538 A.2d 908, 909-10 (Pa. Super. 198

2025We must account for the distinction between civil and criminal verdicts, as well as the idiosyncratic process that the trial court used in the case at bar. 17 Commonwealth v. Peters, 218 A.3d 1206 , 1209 (Pa. 2019). 18 See Commonwealth v. Townsend, 237 A.2d 192, 195 (Pa. 1968). 19 Verdict Slip, 10/14/2021, at 4 (R.R. at 69). 20 See also Commonwealth v. Dixon, 997 A.2d 368, 381-82 (Pa. Super. 2010) (conducting merger analysis for convictions under Sections 6105 and 6106 and observing no distinction between “possesses” and “carries”); Commonwealth v. Magwood, 538 A.2d 908, 909-10 (Pa. Super. 198

2025We must account for the distinction between civil and criminal verdicts, as well as the idiosyncratic process that the trial court used in the case at bar. 17 Commonwealth v. Peters, 218 A.3d 1206 , 1209 (Pa. 2019). 18 See Commonwealth v. Townsend, 237 A.2d 192, 195 (Pa. 1968). 19 Verdict Slip, 10/14/2021, at 4 (R.R. at 69). 20 See also Commonwealth v. Dixon, 997 A.2d 368, 381-82 (Pa. Super. 2010) (conducting merger analysis for convictions under Sections 6105 and 6106 and observing no distinction between “possesses” and “carries”); Commonwealth v. Magwood, 538 A.2d 908, 909-10 (Pa. Super. 198

2018In its opinion, the trial court aptly disposed of Appellant’s sufficiency of the evidence claim as follows: In Quel, [supra,] the Superior Court found sufficient evidence that the appellant stole the missing funds from the bank deposit envelopes to satisfy the possession requirement for the “obtain property of another” element under Section 3922(a) where multiple people handled and had access to the deposit envelopes and there was no evidence that anyone saw her remove -8- J-A29022-17 the money. [See Quel, supra,] at 1034, 1038-41.

2018In its opinion, the trial court aptly disposed of Appellant’s sufficiency of the evidence claim as follows: In Quel, [supra,] the Superior Court found sufficient evidence that the appellant stole the missing funds from the bank deposit envelopes to satisfy the possession requirement for the “obtain property of another” element under Section 3922(a) where multiple people handled and had access to the deposit envelopes and there was no evidence that anyone saw her remove -8- J-A29022-17 the money. [See Quel, supra,] at 1034, 1038-41.

2015See also Commonwealth v. Allshouse, 33 A.3d 31, 39 (Pa.Super. 2011).5 Further, the record reveals that the trial court did not, as appellant suggests, “turn over all of [appellant’s] supervision to the PA Board of Probation and Parole.” (Appellant’s brief at 13.) The Parole Board specifically refused to accept appellant for supervision in the 2011 County IP case because that sentence involved the probationary portion of a County IP program and the Parole Board was not empowered to accept supervision 5 Although Wendowski and Allshouse involved the revocation of probation imposed pursuant to 42

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See generally Baylor, 540 Pa. at 438 , 658 A.2d at 744 (delineating the elements of adverse possession as actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years).

2002See generally Baylor, 540 Pa. at 438 , 658 A.2d at 744 (delineating the elements of adverse possession as actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years).

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

2002See, e.g., Reiter, 173 Pa. at 84 , 33 A. at 1012 ("The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which after twenty-one years will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line.”); Brown, 9 Watts, at 567 ("A possession claim[ed] as [one’s] own is in law and reason adverse to all the world — and as much so as if he has never heard of an adverse clai

1997Chief Justice Nix closed his concurring opinion in Brinkley by noting that any notion of reciprocal discovery rights pertaining to statements in the possession of the defense “would impermissibly tip the balance of advantage even more heavily in the prosecution’s favor.” Brinkley, supra at 462 , 480 A.2d at 991 (Nix, C.J., concurring).