Com. v. Tillman, T.

Opinion

J-A19001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY TILLMAN : : Appellant : No. 926 EDA 2018

Appeal from the Judgment of Sentence November 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006940-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY TILLMAN : : Appellant : No. 927 EDA 2018

Appeal from the Judgment of Sentence November 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006941-2016

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 06, 2019

In this consolidated case, Tony Tillman appeals from his judgments of

sentence, entered by the Court of Common Pleas of Philadelphia County, for

first-degree murder, carrying a firearm without a license, and possession of

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* Former Justice specially assigned to the Superior Court. J-A19001-19

an instrument of a crime (“PIC”) under Docket No. CP-51-CR-0006940-2016

and for aggravated assault and retaliation against a witness under Docket No.

CP-51-CR-0006941-2016.1

Appellant shot and killed Aaron Walker in Philadelphia on the evening of

September 18, 2015. Following the murder, Appellant told Roger Pickens, one

of Appellant’s associates with whom he sold drugs, that Appellant had “f***ed

up” because he had dropped his hat at the scene of the shooting. N.T. Trial,

11/2/17, at 55.2 Police recovered a red fedora from the scene of the shooting.

Appellant had been seen wearing a red fedora on the day of the shooting and

subsequent DNA testing confirmed that the fedora contained DNA matching

Appellant’s.

Five days after the shooting, another one of Appellant’s associates,

Kevin Rideout, was taken into custody for drug-related offenses. At that time,

Rideout gave the police information implicating Appellant in the murder of

Walker. Rideout was released from custody that same day, and told Pickens

that he had given the police information on the shooting. The next day,

Appellant met with Pickens, told him he knew about Rideout’s statement to

1Appellant’s separate appeals were consolidated by this Court’s order dated May 31, 2019.

2 The record contains two separate transcriptions of Pickens’ testimony at Appellant’s trial on November 2, 2017, both of which reference the same docket number. It appears that the only distinction between the two transcriptions is that they are paginated differently. This opinion cites to the page numbers in the transcription that coordinate with the page numbers used by the trial court.

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the police implicating him in the murder, and said that Rideout “had to go.”

Id., at 62.

On October 8, 2015, Pickens was on the same block as Rideout when

Appellant told Pickens to “clear the block” for his safety. Id., at 64. Afterwards,

three men turned the corner onto the block and opened fire on Rideout.

Although Rideout sustained six gunshot wounds, he survived. Appellant later

told Pickens that Rideout was supposed to be killed.

Pickens was subsequently arrested on drug charges. At that time, he

gave a videotaped statement to police implicating Appellant in the Walker

murder and agreed to cooperate with police on the matter.

On March 15, 2016, Appellant was arrested for the murder of Walker as

well as for attempted murder, aggravated assault and related offenses for the

shooting of Rideout. The cases were consolidated.

Four months later, Pickens testified against Appellant at Appellant’s

preliminary hearing. Following Pickens’ release from prison on the unrelated

drug charges, he feared for his safety after testifying against Appellant. As a

result, the Commonwealth relocated Pickens.

On July 15, 2017, Appellant’s and Pickens’ drug supplier, Edward

Raymond, approached Pickens in the front yard of his relocated residence and

told him “I know where you been at … I could have reached out and touched

you, but I didn’t. I waited. I wanted to give you a chance to make this sh**

right.” Id., at 88-89. Raymond also told Pickens that he had been to prison to

see Appellant, and that Appellant had “told him everything.” Id., at 89.

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Specifically, Raymond informed Pickens that Appellant told him he knew

Pickens had testified against him at his preliminary hearing. Id., at 89.

Raymond then retrieved a gun from his vehicle, put it under his shirt, and

asked Pickens if he was going to make it right. Pickens fled into his house and

heard Raymond tell him “I know where you’re at.” Id., at 90. Pickens reported

this incident, made a statement to the police, and was once again relocated.

Appellant’s consolidated jury trial began on October 31, 2017. Prior to

trial, Appellant filed a motion in limine seeking to bar Pickens from testifying

about Raymond’s alleged witness intimidation. Following a hearing, the trial

court denied the motion and Pickens was allowed to testify at trial about

Raymond’s efforts to intimidate him into changing his testimony.

Ultimately, the jury convicted Appellant of first-degree murder, PIC and

carrying a firearm without a license in connection with the Walker murder. The

jury also convicted Appellant of aggravated assault and retaliation against a

witness in connection with the Rideout shooting. The court then sentenced

Appellant to an aggregate term of life imprisonment without parole.

Appellant devotes the entire argument section of his brief to his claim

that the trial court erred by denying his motion in limine and allowing Pickens

to testify about Raymond’s efforts to intimidate him. This claim is without

merit.

We review a trial court’s decision to grant or deny a motion in limine with the same standard of review as admission of evidence at trial. With regard to the admission of evidence, we give the trial court broad discretion, and we will only reverse a trial court’s

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decision to admit or deny evidence on a showing that the trial court clearly abused its discretion.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citations

omitted).

First, Appellant contends the trial court erred in finding that Pickens’

testimony was admissible as evidence of Appellant’s consciousness of his guilt.

Any attempt by a defendant to interfere with a witness’s testimony is

admissible to show a defendant’s consciousness of guilt. See

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003). Generally,

threats by third persons against witnesses are only admissible to show a

defendant’s consciousness of guilt if the defendant is linked in some way to

the making of the threats. See Commonwealth v. Bryant, 462 A.2d 785,

788 (Pa. Super. 1983) (citation omitted).

Here, Appellant asserts that there was no evidence linking him to the

threats Raymond, a third party, made to Pickens. Instead, Appellant

maintains, the Commonwealth merely established that Appellant had a

relationship with Raymond and that Raymond had spoken to Pickens, which is

insufficient grounds to find a connection between Appellant and Raymond’s

attempt to intimidate Pickens. We disagree.

As the trial court stated in its opinion below, the Commonwealth did in

fact produce evidence that Appellant was involved in Raymond’s efforts to

intimidate Pickens into recanting his testimony. Specifically, Pickens testified

that Raymond informed him that Raymond had visited Appellant in prison.

See N.T., 11/2/17, at 87-89. During that visit, Appellant advised Raymond

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that Pickens had testified against him at the preliminary hearing. See id., at

89. Further, the Commonwealth produced prison visitor logs corroborating the

fact that Raymond had visited Appellant in prison three times, with the last

visit occurring after Pickens’ preliminary hearing testimony. See N.T.,

11/3/17, at 70.

Appellant asserts that the trial court improperly relied upon Pickens’

testimony at trial when justifying its earlier decision to deny Appellant’s

motion in limine. Appellant highlights the fact that Pickens did not testify about

what Raymond told him until after the court had already ruled the testimony

admissible.

It is true that Pickens did not testify before the court ruled on Appellant’s

motion in limine. However, Appellant did not request that Pickens testify.

Rather, both Appellant and the Commonwealth presented argument based

upon the Commonwealth’s proffer. See N.T. Trial, 10/30/17, at 29-39. In this

proffer, the Commonwealth noted that Pickens would testify that Raymond

visited Appellant in prison and tells Pickens that Appellant “told him

everything.” Id., at 29. As the Commonwealth noted in its argument to the

trial court, this phrasing clearly implied that Appellant informed Raymond

about Pickens’ testimony at Appellant’s preliminary hearing.

Appellant also takes issue with the trial court’s reliance on the Rideout

shooting as support for its finding that Raymond’s threats were traceable to

Appellant. According to Appellant, the trial court erred in relying on the

Rideout shooting in its opinion because there “is no connection whatsoever”

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between that shooting and Raymond’s visit to Pickens. Appellant’s Brief, at

37.

Contrary to Appellant’s contention, there was a clear connection

between the two. At Appellant’s preliminary hearing, Pickens implicated

Appellant in both the Walker murder as well as in the Rideout shooting and it

was this testimony that Raymond, after visiting Appellant in prison, warned

Pickens to “make right.”

To the extent that Appellant argues that the Rideout shooting was an

inadmissible prior bad act, despite the fact that it was one of the two crimes

he was on trial for at his consolidated trial, the shooting was clearly part of

the history of the case. See Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.

Super. 2016) (evidence of prior bad act admissible if it is part of the history

of case and forms part of the natural development of the facts). In any event,

even without the reference to the Rideout shooting, there was a sufficient

basis for the trial court to find that Appellant was connected to the threats and

therefore deny Appellant’s motion in limine.

We see no abuse of discretion in the trial court’s conclusion that there

was sufficient evidence linking Appellant to Raymond’s efforts to intimidate

Pickens and therefore, that Pickens’ testimony about those efforts was

admissible. Compare Commonwealth v. King, 689 A.2d 918, 923 n.6 (Pa.

Super. 1997) (alleged instance of third party’s act of intimidation against

witness was inadmissible when there was no evidence linking that act to the

defendant other than his friendship with the third party and no evidence that

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the act of intimidation actually occurred). Moreover, the trial court specifically

instructed the jury that it could only consider the witness intimidation

testimony for the limited purpose of establishing Appellant’s consciousness of

guilt. Appellant’s first issue on appeal merits no relief.

Next, Appellant contends that the trial court abused its discretion by

denying the motion in limine to bar Pickens’ testimony about the threats

Raymond made to him because such testimony constituted inadmissible

hearsay. This claim also fails.

There is no dispute that Raymond’s statements were being offered for

the truth of the matter asserted and are therefore hearsay. See

Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999) (hearsay is an

out-of-court statement offered to prove the truth of the matter asserted in the

statement). Hearsay is generally not admissible unless it falls within one of

the exceptions to the hearsay rule listed in the Pennsylvania Rules of Evidence.

See Commonwealth v. Savage, 157 A.3d 519, 524 (Pa. Super. 2017). One

of those exceptions is the co-conspirator exception, which permits the out-of-

court declarations of one co-conspirator to be admitted against another co-

conspirator if the declarations were made during and in furtherance of the

conspiracy. See Commonwealth v. Coccioletti, 425 A.2d 387, 391 (Pa.

1981).

The trial court below found, and we agree, that there was ample

evidence to conclude that a conspiracy existed between Raymond and

Appellant to intimidate Pickens. The court stated:

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Here, as discussed [in Appellant’s first claim], there was ample evidence for the Court to conclude that a conspiracy existed between Raymond and [Appellant] to intimidate Pickens and obstruct justice. According to Pickens, Raymond said that he had visited [Appellant] in prison and that [Appellant] told him “everything” about [Pickens’] preliminary hearing testimony against [Appellant]. Furthermore, the Commonwealth corroborated [Pickens’] testimony by providing the prison’s visitor logs which established that Raymond did indeed visit [Appellant] on three occasions. Additionally, the statements were made in the course of, and in furtherance of the conspiracy, as Raymond made the statements during his attempt to convince Pickens to recant.

Trial Court Opinion, at 8-9.

In asserting that the trial court erred in reaching this conclusion,

Appellant merely recycles many of the meritless arguments that he made

when presenting his first claim. No relief is due.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/6/19

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