Commonwealth v. Tizer

580 A.2d 305, 525 Pa. 315, 1990 Pa. LEXIS 174
CourtSupreme Court of Pennsylvania
DecidedSeptember 24, 1990
DocketNo. 106 E.D. Appeal Docket 1989
StatusPublished
Cited by2 cases

This text of 580 A.2d 305 (Commonwealth v. Tizer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Tizer, 580 A.2d 305, 525 Pa. 315, 1990 Pa. LEXIS 174 (Pa. 1990).

Opinion

OPINION

McDERMOTT, Justice.

The appellant, John Meo and Sam Sicoli were arrested and charged with Criminal Conspiracy and Intent to Manufacture a Controlled Substance after police executed a search warrant for a home where drugs were being manufactured. In a joint trial by jury that followed several of the officers who were involved in the surveillance of the [318]*318home prior to the raid were called upon by the Commonwealth to testify. Though these officers did not read from their reports or from those authored by the other non testifying officers involved, defense counsel both prior to and during trial attempted to obtain access to certain of these reports. These requests were denied by the Commonwealth and by the trial court at trial over defense counsel’s objections.

At the conclusion of the Commonwealth’s case-in-chief, the trial judge granted the appellant’s demurrer to all charges with the exception of the manufacturing count. It was on this charge that she was ultimately convicted. Post-verdict motions were filed and dismissed by the Court and the appellant was sentenced to a period of incarceration of from one to five years. Her subsequent petitions for modification of sentence and for a new trial based upon after discovered evidence were dismissed. She appealed her judgment of sentence to the Superior Court which in an opinion and by order dated March 13, 1987, remanded to the lower court to conduct an evidentiary hearing to determine whether the denial of her request to obtain copies of certain police reports constituted error 1 Commonwealth v. Tizer, 362 Pa.Super. 328, 524 A.2d 902 (1987). The trial court conducted a hearing on remand on October 27, 1987, wherein it concluded that the failure to provide police reports was harmless error and therefore reinstated the original judgment of sentence. The appellant then sought appeal from this order to the Superior Court which affirmed on December 28, 1989. 386 Pa.Super. 654, 555 A.2d 944. A petition for allowance of appeal ensued which petition was granted by this Court.

The appellant argues that: the trial court erred in failing to allow defense counsel to inspect police reports; that evidence provided at time of trial was insufficient to sustain [319]*319her conviction and that after discovered evidence provided by co-defendant Sicoli warrants a new trial.

• With regard to her first issue, the appellant contends that not withstanding her requests, she was denied the contents of a police report. The contents of the report were not used in evidence at trial. The meaning attached by the appellant and argued here was not discovered until the appellate process was under way. She contends that had it been available it would have aided her defense, that she was a first time, non-participating visitor to a virtual drug factory in a house in the Poconos. The appellant appealed to Superior Court and that court held that the use of the material in the police report was in fact a denial of her rights to the disclosure of Commonwealth evidence. They, nonetheless, held that the error under Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), was harmless error. We agree.

The appellant was tried jointly with two others, one her boyfriend John Meo, and one Sam Sicoli, the owner of the premises. The evidence of the Commonwealth showed that on an early morning in April, 1985, the police raided the home of Sicoli. Prior to entry, the police had observed three people moving about the house through a window, the other windows of the house were covered with various types of materials. The house emitted a strong odor described as cooking methamphetamine, and the occupants were coming out of the house, including the appellant, who came out to a balcony, apparently to escape the odors of the cooking drugs. When the police executed their search warrant and entered the house, they found the appellant in the kitchen where drugs were found cooking on the kitchen stove. They also found numerous portable camping stoves on which pots of methamphetamine were boiling. Since the presence of someone was required to monitor the drug cooking process and the appellant was in the kitchen, a jury could deduct her participation in the process. While mere presence is not enough, presence at a stove with pots bubbling drugs in a house, permeated with [320]*320the odor not only from the kitchen, but from camp stoves throughout the house, is sufficient to satisfy the Commonwealth’s theory that she was an active participant. One need not own premises to actively or constructively participate in criminal enterprises therein. The jury could find that a person in a kitchen with cooking drugs, in a house, a veritable cookery of drugs, was involved in their manufacture and was exercising knowledge, control, and dominion over the process. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).

Against this evidence, the appellant offered no evidence, apparently relying on the testimony of John Meo, who was found by the police hiding on a shelf in a closet, that he and the appellant, his girlfriend, were visitors who came for other reasons and stayed the night.

Appellant’s defense was essentially that she was a first-time visitor, and what was so obviously afoot, was not her doing. It is upon this point her complaint that she was denied the police report became pertinent. The police report was that of Trooper Marchetti, who participated in the surveillance of the house prior to the issuance of the search warrant. During his surveillance, he observed Sicoli arrive with a woman and deliver material to the house. In his report he identified the woman as Mrs. Sicoli, the wife of the co-defendant and the owner of the house. Trooper Marchetti was not called to testify. The trooper who did testify referred to the woman who accompanied Sicoli as an “unidentified woman.” Appellant complains that since the woman was unidentified at trial, but was, in fact, Mrs. Sicoli and not the appellant, the jury was led to believe that the “unidentified woman” was her, putting the lie to Meo’s evidence that he and appellant were first time visitors. Were that all, it would indeed argue that appellant is correct and entitled to clarification by new trial. To determine the question, the Superior Court remanded the case to the trial court to determine whether the failure of the [321]*321Commonwealth to supply Trooper Marchetti’s report was error. The trial court found error but found the error harmless and reinstated the judgment of sentence. The trial court found the evidence that was denied was neither exculpatory or incriminating. Indeed at trial the only reference to an “unidentified woman” was by Trooper Kutch, and when asked if he ever saw the appellant before, he said the only time he ever saw her was in the kitchen when he entered on the morning of the raid. Appellant’s contention that she was compromised by any ambiguity was dissolved.

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Cite This Page — Counsel Stack

Bluebook (online)
580 A.2d 305, 525 Pa. 315, 1990 Pa. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tizer-pa-1990.