¶1Concurring and Dissenting Opinion by
¶2I disagree with Mr. Justice Manderino’s conclusion in the Weeden appeal. In my view, the trial court was correct in ruling Weeden lacked standing to challenge the search of the apartment of his co-defendant’s fiancee. In concluding Weeden had standing, Mr. Justice Manderino relies on Jones v. United States, 362 U.S. 257, 80 S. Ct. 725 (1960). I am in full agreement with the holding of Jonesas interpreted by the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967 (1968). Therein, the Supreme Court stated: “[W]hen, as in Jones, possession of the seized evidence is itself an essential element of the offense *453with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence [at the suppression hearing]. Id. at 390, 88 S. Ct. at 974. The Supreme Court in Jonesheld that if the accused were charged with possession, an assertion by the government that he lacked standing to contest the admissibility of the unlawful goods he allegedly possessed would amount to “squarely contradictory assertions of power by the Government.” Jones, supra,362 U.S. at 264, 80 S. Ct. at 732.
¶3However, the instant case differs from Jonesin that Weeden was not charged with an offense in which possession of the seized goods was an element. In Jonesthe defendant was charged with having (1) “ ‘purchased, sold, dispensed and distributed’ narcotics,” and with having (2) “‘facilitated the concealment and sale of’ the same narcotics . . . .” Id. at 258, 80 S. Ct. at 729. “Possession was the basis of the Government’s case against petitioner.” 362 U.S. at 258, 80 S. Ct. at 730. The Supreme Court’s later Simmonsdecision interpreted Jonesas applying to situations in which “the seized evidence is itself an essential element of the offense with which the defendant is charged . . . .” Simmons, supra,390 U.S. at 390, 88 S. Ct. at 974. (Emphasis added.)
¶4Instantly, Angelo Weeden was indicted for murder and voluntary manslaughter. Weeden asserted standing to suppress the admission of marijuana into evidence which the Commonwealth alleged was stolen from the deceased, James Montgomery, at the time of his murder. There is no doubt that murder and voluntary manslaughter do not inherently require possession of any goods, including marijuana. However, instantly, the Commonwealth tried Weeden and his co-defendant, Major Heed, on the basis of felony-murder arising during the perpetration of robbery. Mr. Justice Manderino posits that the marijuana was an “essential element” of *454the robbery in that “[a]n essential element of robbery is the taking of goods from another. In order to have a taking, the robber must have taken possession of the goods of another.” [Emphasis in original.]
¶5I disagree with this reasoning for I am convinced robbery is not a possessory offense in the same sense as the narcotics indictments before the United States Supreme Court in tTones. Therefore, I believe that Jonescannot be used as a vehicle to the result Mr. Justice Manderino reaches. In fact, in the decision of Simmons v. United States, supra, the United States Supreme Court clearly labelled robbery as a non-possessory crime. In the Simmonscase, one Garrett and one Simmons were indicted and tried for robbery of a savings and loan institution. The home of a Mrs. Mahon was searched and a suitcase was found containing incriminating paraphernalia used in the robbery. Garrett moved to suppress the admission of the suitcase asserting that “although he could not identify the suitcase with certainty, it was similar to one he had owned .. ..” Simmons, supra,390 U.S. at 381, 88 S. Ct. at 969. The Government used the testimony given by Garrett at the suppression hearing against him during his robbery trial. The United States Supreme Court in deciding for Garrett on grounds not apposite to this issue, made it emphatically clear that robbery was a non-possessory offense. The Court stated: “The dilemma faced by defendants like Garrett is most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense. We eliminated that Hobson’s choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with non-possessory crimes, like Garrett, are entitled to be relieved entirely.” Id. at 391-392, 88 S. Ct. at 975. Hence, the United States *455Supreme Court has deemed rohhery to be a non-possessory crime.
¶6This statement by the United States Supreme Court, alone, should be conclusive in defeating the position taken in Mr. Justice Manderino’s opinion. However, Mr. Justice Manderino cites United States v. Price, 447 F.2d 23 (2d Cir.), cert. denied, 404 U.S. 912, 92 S. Ct. 232 (1971) in support of his position. Upon a review of Price, I find that it rejects Mr. Justice Manderino's position, rather than supports it. Therein, John Thomas Price was charged with conspiracy to steal magnetic copper wire while said wire was moving in interstate commerce. Price was further charged with the substantive crime of theft, 18 U.S.C. §659. In deciding that Price lacked standing to suppress wire seized from the premises of the co-defendant, the Court of Appeals of the Second Circuit held: “He was not charged with possession and the search was not directed against him. Nor has he shown any proprietary interest in the premises, and there is no indication that he was on the New Milford property at the time of the search. As held in Alderman v. United States, 394 U.S. 165, 171-172, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), a person whose rights were not violated by the search is given no special standing as a co-defendant or co-conspirator. Accord, United States ex rel. Cardaio v. Cassacles, 446 F.2d 632, at 635 (2 Cir. 1971).” Price, supra,447 F.2d at 30. See also United States ex rel. Cardaio v. Cassacles, 446 F.2d 632 (2d Cir. 1971), and United States v. Durkin, 335 F. Supp. 922 (S.D. N.Y. 1971).
¶7Mr. Justice Manderino’s assertion that robbery involves a “taking”, and, a taking necessarily involves possession, must similarly apply to the crime of theft charged against the defendant in Price. Nonetheless, this position was rejected in Price, and, I feel we should likewise reject it. As decided in Simmonsrobbery is not a possessory crime. The holding in Jonesconcerns *456only those possessory crimes in which “possession” both convicts and confers “standing.” Jones, supra,362 U.S. at 263, 80 S. Ct. at 732. Mr. Justice Manderino has cited not one case which would extend the holding of J ones to non-possessory crimes.
¶8I dissent.