Com. v. Tillery, R.

• Court: Superior Court of Pennsylvania
• Decided: December 16, 2019
• Docket: 526 EDA 2019
• Status: Unpublished

Opinion

J-A24044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHEEM JAMAR TILLERY : : Appellant : No. 526 EDA 2019

Appeal from the Order Entered January 18, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005768-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 16, 2019

Rasheem Jamar Tillery (Tillery) appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County, after a non-jury

trial. Tillery was found guilty of two counts of possession with intent to deliver

a controlled substance, two counts of possession of a controlled substance,

possession of drug paraphernalia, and two counts of conspiracy to possess

with intent to deliver marijuana and cocaine.1 Upon careful review, we affirm.

The facts underlying this appeal are as follows:

On September 1, 2017 members of the Chester City Narcotics Unit and the Delaware County Task Force executed a warrant that authorized a search of 1209 Clover Lane in Chester. Defendant, Rasheem Tillery, and Anthony Young were present when the warrant was executed. The search resulted in the seizure of more than nine hundred dollars and thirty-four “bags” of cocaine which ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 Pa. C.S.A. ¶¶ 780-113(A)(30), (A)(16), (A)(32), and ¶ 903. J-A24044-19

were found under an air mattress in a second-floor bedroom. Also seized was a plastic bag containing hundreds of new plastic containers that are commonly used to package cocaine, a clear sandwich bag containing twelve of the same clear plastic jars that contained cocaine, three pill bottles bearing the name “Anthony Young,” 21.4 grams of “crack” cocaine in a clear sandwich bag, 11.6 grams of cocaine, 22.9 grams of marijuana, new clear black Ziploc bags and a plate containing cocaine residue that was found along with a razor blade. Both defendant and Young were arrested and charged with, inter alia, multiple counts of possession with intent to deliver and criminal conspiracy.

Trial Court 1925(a) Opinion (Tr.Ct.Op.) at 1-2.

On December 4, 2018, Tillery was sentenced to an aggregate term of

40 to 120 months’ incarceration. On December 14, 2018, an amended

sentencing order was entered. On January 4, 2019, Tillery filed, and was

granted, an unopposed petition for leave to file motion for reconsideration

nunc pro tunc.2 Tillery filed his post-sentence motion on January 4, 2019,

and on January 18, 2019, the post-sentence motion was denied. On February

13, 2019, counsel for Tillery filed a notice of appeal.3

Tillery raises the following claims for our consideration:

1. Whether…the evidence introduced at trial was sufficient to prove beyond a reasonable doubt that Mr. Tillery (a) conspired with another to possess or sell drugs, (b) was aware that drugs were ____________________________________________

2 In a footnote to its 1925(a) Opinion, the Trial Court noted that after sentencing, trial counsel moved to withdraw his appearance. The motion was granted and new counsel was appointed on December 18, 2018. New counsel filed the motion seeking leave to file post-sentence motions nunc pro tunc. That motion was granted and a motion for reconsideration was filed, and subsequently denied, on January 18, 2019. Tr.Ct.Op. at 2, n.5.

3Tillery filed his concise statement of errors complained of on appeal on March 8, 2019, and the Trial Court entered its opinion on March 18, 2019.

-2- J-A24044-19

being sold by Mr. Young at the residence where he was arrested, or (c) personally possessed or sold drugs from that location or anywhere else.

2. Whether the trial court committed error by permitting hearsay statements made by police officers who were not identified and whom Mr. Tillery had no opportunity to confront.

Tillery’s Brief at 4 (suggested responses omitted).

Tillery asserts that the evidence presented before the Trial Court was

insufficient to support his convictions for possession with intent to deliver a

controlled substance and conspiracy. Specifically, he contends, first, that he

was unaware that illegal drugs were being sold from the residence, that he

did not constructively possess any drugs and paraphernalia, and only his co-

defendant, Anthony Young, sold drugs from the residence. Tillery’s claim fails.

A determination of evidentiary sufficiency presents a question of law.

As such, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Russell, 209 A.3d 419, 426 (Pa. Super. 2019). In

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Id. The facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. Commonwealth v. Colon-

Plaza, 136 A.3d 521, 525-26 (Pa. Super. 2016). It is within the province of

the fact-finder to determine the weight to be accorded to each witness’s

testimony and to believe all, part, or none of the evidence. Commonwealth

-3- J-A24044-19

v. Tejada, 107 A.3d 788, 792-3 (Pa. Super. 2015). The Commonwealth may

sustain its burden of proving every element of the crime by means of

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.

Super. 2016).

In order to establish the offense of possession with intent to deliver, the

Commonwealth must prove beyond a reasonable doubt that a defendant

possessed the controlled substance with the intent to deliver it.

Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003).

“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.”…We subsequently defined

“conscious dominion” as “the power to control the contraband and the intent

to exercise that control.”” Commonwealth v. Mudrick, 507 A.2d 1212-13

(Pa. 1986). To establish the existence of a criminal conspiracy, the

Commonwealth must prove an agreement to commit an unlawful act;

circumstantial evidence may provide proof of conspiracy. Commonwealth

v. Perez, 931 A.2d 703, 707-708. The conduct of the parties and the

circumstances surrounding such conduct may create a “web of evidence”

linking the accused to the alleged conspiracy beyond a reasonable doubt. Id.

Here, no drugs were found on Tillery’s person, and he argued that,

unlike his co-defendant, he had not been previously identified or targeted by

the police in its investigation of his co-defendant; Tillery pointed to the

testimony of his co-defendant, who stated that Tillery, a barber, was at the

-4- J-A24044-19

home where the raid occurred for the purpose of cutting the co-defendant’s

hair, and was unaware that there were drugs in the house. Tillery’s Brief at

7-8. However, the Commonwealth established Tiller’s conscious dominion and

control over controlled substances through police testimony deemed credible

by the Trial Court. The testifying officers approached the property and saw

two men sitting at a folding card table in a living room that was essentially

empty except for a police scanner. October 6, 2018 Transcript of Proceedings

(N.T.) at 10-11, 38, 42. When the men saw the search team approach, they

took evasive action – Anthony Young, the co-defendant, ran to the kitchen

and attempted to dispose of a bag containing crack cocaine, packaged in clear

tiny jars with snap lids on top. N.T. at 39-40. After running to the front door

and slamming and dead-bolting it, Tillery ran up the stairs, located

immediately in front of the door, to a bathroom located at the top of the stairs,

and then down the hall and into a bedroom. N.T. at 11-12, 15-16, 39. When

a testifying officer entered the bedroom, Tillery was observed crouching next

to an air mattress, which was found to contain thirty-four individual packets

of cocaine and $900 in cash. N.T. at 16-18. The other testifying officer, who

was certified as an expert in narcotics investigations and was part of the team

who executed the search warrant, stated that given the lack of furnishings in

the bedroom room along with the lack of furnishings in the entire property,

the circumstances suggest that the property served not as a residence but as

a “trap” house where drugs are sold by dealers who have no legitimate

connection to the property but use it only as a location for sales; the officer

-5- J-A24044-19

also confirmed that there was no evidence that Anthony Young held a lease

to the property. N.T. at 72, 76, 81. The Trial Court properly concluded that

Tillery’s actions, taken together with these circumstances proved beyond a

reasonable doubt that Tillery controlled the contraband along with Young and

acted in concert with him to hide the evidence.” See Tr.Ct.Op. at 11.

Tillery argues that this Court’s holding in Commonwealth v.

Rodriguez, 618 A.2d 1007, 1008 (Pa. Super. 1993) requires the Trial Court

to find that constructive possession was not proven beyond a reasonable

doubt. We disagree. In Rodriguez, where we found the evidence insufficient

to establish constructive possession as here, no drugs were found on the

appellant’s person. However, unlike the case sub judice, the Rodriguez court

found evidence of the appellant’s control lacking, in that many seized items

were found hidden from view, and others seized in view were found

inconsistent with criminal activity. Unlike here, there was evidence in

Rodriguez that the other man found at the scene actually lived in the one-

room apartment containing an open walk-in closet, a sink, a bed and a

dresser; the only evidence linking the appellant was his presence, and the fact

that at the time of the raid he was holding a key to the apartment. Here,

there is ample evidence, when viewed in the light most favorable to the

Commonwealth, to support a finding of Tillery’s constructive possession where

Tillery was both aware of the presence of drugs, and engaged in the criminal

activity.

-6- J-A24044-19

Tillery argues that the Trial Court erred by permitting hearsay

statements by unidentified police officers whom Tillery was unable to confront.

In his brief, Tillery alleges the Trial Court relied upon hearsay statements

contained in a police evidence report prepared by Officer Goldschmidt and

introduced into evidence at trial as Exhibit C-7, as well as testimony by Officer

Goldschmidt in reliance upon the police incident report.4 Tillery contends that

no evidence was introduced by the testifying officers that (i) Tillery was

observed, upon approach to the house, sitting at a table in the living room

with Anthony Young; (ii) Tillery ran to the front door and slammed it shut; (iii)

the sound of the dead bolt being closed was heard and Tillery was seen

running up the stairs; or (iv) Tillery was seen running from the bathroom into

the bedroom and throwing something under the mattress. Tillery, however,

failed to raise a challenge to the introduction of hearsay evidence at trial, or

in his concise statement of errors complained of on appeal. This claim is

therefore waived. Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super.

2016). Furthermore, even if we were to find this argument not waived, it

would not alter the fact that nothing in the record suggests that hearsay

evidence contributed in any way to the Trial Court’s verdict, and Tillery

suffered no prejudice therefrom.

____________________________________________

4The police incident report includes the statement that “Tillery was initially observed flushing the toilet and running from the bathroom into the bedroom, where he was then observed throwing items under an air mattress.” Exhibit C-7 at 6.

-7- J-A24044-19

There was first-hand evidence that Tillery got up from the table in the

dining room, slammed the door, locked the deadbolt, and ran up to the second

floor and into a bedroom, and ample circumstantial evidence that he then

attempted to hide 34 packets of cocaine and $900 in cash.

Detective Bannar testified he saw one male seated at a card table and

another male (whose face he could not see) running toward the front door as

the “stack”5 of officers approached the house. N.T. at 10-11. Detective

Bannar heard someone slam the open door and lock the dead bolt. Id. at 11-

12. Detective Bannar testified that the stack of officers of which he was a part

rammed the front door, and while some of the officers pursued one of the men

who had been observed seated at the card table as he ran toward the kitchen,

Detective Banner followed three or four members of the stack up the stairway,

which was immediately in front of the entrance to the house. Id. at 12-14.

Midway up the steps, Detective Bannar observed a male, whom he identified

in court as Tillery, exiting a bathroom at the top of the stairs and running

down the hall towards the front of the house. Id. at 13-14. Detective Bannar

testified that there was no one else on the second floor of the house. Id. at

16. He testified that he heard, but did not see, a bedroom door slam; the first

officer kicked the door in, and Detective Bannar stated that he observed Tillery

5 A “stack” of officers describes the group of approximately ten officers who breached the property; there was a shield man armed with an AR-15 who entered first in case firearms come into play, followed by the rest of the task force. Detective Banner testified that upon initial entry to the house, he was in the middle of the stack, “maybe fifth or sixth.” N.T. at 10, 23.

-8- J-A24044-19

crouched down next to an air mattress in the room. Id. Other than police

officers, there were no other persons in the room; Detective Banner lifted up

the air mattress, and observed that “it looked like someone threw a deck of

cards under the bed. There was money scattered all over the place…there

was a clear sandwich bag with little individual clear bags with crack cocaine in

them. I think there was 34 total.” Id. at 18. Detective Bannar stated that

Tillery had “a good two seconds in that room by himself.” Id. at 28.

Sergeant Goldschmidt, the expert in the area of narcotics and narcotics

investigations, was the fourth officer in the stack as they entered the house.

He testified that as they approached the house, he observed through open

windows the silhouette of two individuals sitting at a card table in the living

room. N.T. at 38. He observed the front door close, and upon entry, he

remained on the first floor and followed the man who went running into the

kitchen. Id. at 39. Sergeant Goldschmidt testified that when he came

through the front door, he saw Tillery at the top of the stairs. Id. at 63.

Sergeant Goldschmidt observed Anthony Young, the co-defendant throwing

bags into the sink that were found to have contained crack cocaine. Id. at

40. He also stated that on the card table in the living room, he observed

three cell phones, $25 cash, and a set of keys to the front door; on the floor

by the steps was a police scanner, set to Sector 3, which is the Chester City

police department. Id. at 42. He testified that inside the kitchen cabinets

were drug paraphernalia, cocaine, marijuana, new and unused bags similar to

-9- J-A24044-19

the bags found under the air mattress, and pill bottles with the co-defendant’s

name on them. Id. at 44-47.

The Trial Court found credible the testimony of the two police

department witnesses, and assigned no weight to the testimony of the co-

defendant that the policemen who testified were “lying;” that the front door

was already closed and locked when the police arrived; that he never ran into

the kitchen but remained in the living room; that his childhood friend Tillery

was upstairs in the bathroom when the police rammed his front door; and that

although there was a pile of money neatly stacked, there were no drugs hidden

under the air mattress. Tr.Ct.Op. at 12; see also N.T. at 100-112. There was

no testimony whatsoever at the trial from any witness that Tillery was

observed by another officer flushing a toilet or putting something under the

mattress, nor was any argument made at trial that Tillery was observed doing

so. Indeed, the Trial Court made no reference to the content of Exhibit C-7,

and the only time it was mentioned was during Tillery’s counsel’s cross

examination of Sergeant Goldschmidt, when he was asked what date and time

it was completed, whether it contained a list of items recovered, and whether

it included information as to whether the front door had been closed by

someone within the house when the officers approached. N.T. at 77-78. In

its opinion, the Trial Court noted only that “circumstantial evidence

demonstrates that [Tillery] attempted to hide thirty-four individual packets of

cocaine and $900 in cash.” Tr.Ct.Op. at 11. Under these circumstances, the

admission of Exhibit C-7, the police incident report, was harmless. “Harmless

- 10 - J-A24044-19

error exists if the record demonstrates either: (i) the error did not prejudice

the defendant or the prejudice was de minimis, or (2) the erroneously

admitted evidence was merely cumulative of other untainted evidence which

was substantially similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

the error could not have contributed to the verdict.” Commonwealth v.

Hairston, 84 A.3d 657, 671-72 (Pa. 2014). “Any concern of a prejudicial

effect on the trier of fact does not predominate in non-jury trials, because trial

judges sitting as fact finders in criminal cases are presumed to ignore

prejudicial evidence in reaching a verdict.” Commonwealth v. Irwin, 579

A.2d 955, 957 (Pa. Super. 1990). Here, it is clear from the Trial Court opinion

that it did not rely on the hearsay contained in Exhibit C-7.

In conclusion, the testimony of two police officers present at the raid of

the “trap” house was amply sufficient to establish Tillery’s guilt beyond a

reasonable doubt and Tillery waived his claim of error in the admission of

evidence. Moreover, the introduction of the police incident report prepared

by one of the officers who testified at trial did not contribute to the verdict.

Accordingly, we affirm the judgment of sentence.

Judgment affirmed.

- 11 - J-A24044-19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/16/19

- 12 -