J-S23008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    THOMAS LYNN TILLMAN,

                             Appellant                No. 821 WDA 2018


        Appeal from the Judgment of Sentence Entered January 18, 2018
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001061-2017


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

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 18, 2019

        Appellant, Thomas Lynn Tillman, appeals from the judgment of sentence

of an aggregate term of 4½ to 14 years’ incarceration, imposed after he was

convicted of two counts each of possession with intent to deliver (PWID), 35

P.S. § 780-113(a)(30), and possession of a controlled substance, 35 P.S. §

780-113(a)(16), as well as a single count of possession of drug paraphernalia,

35 P.S. § 780-113(a)(32). On appeal, Appellant contends that the trial court

erred by denying his motion for judgment of acquittal on his PWID offenses

because the evidence was insufficient to sustain those convictions.      After

careful review, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     The trial court summarized the evidence presented at Appellant’s jury

trial on the above-stated charges, as well as a charge of criminal conspiracy

to commit PWID, as follows:

            The evidence produced at trial by the Commonwealth
     consisted of the testimony offered by Patrol Lieutenant Brian T.
     Grooms and Lieutenant John Johnson, both of the Butler City
     Police Department. The Commonwealth offered the following
     exhibits: Commonwealth’s Exhibit “1” consists of 211 bags of
     heroin, bundled with rubber bands and packaged for sale and 21
     bags of rocks of crack cocaine; Commonwealth’s Exhibit “2” is a
     plastic bag containing a small piece of marijuana inside an
     envelope that was on a table in the living room; Commonwealth’s
     Exhibit “3” is a metal spoon that was found along with a syringe
     on the living room floor; Commonwealth’s Exhibit “4” is a small
     digital scale with white powder residue; Commonwealth’s Exhibit
     “5” is the seized mail (one envelope addressed to Mary Boring and
     one envelope addressed to Allan Kelly, Miss Boring’s boyfriend)
     with [a] 200 North Washington Street, Butler, PA address; and,
     Commonwealth’s Exhibit “6” is the Drug Identification report of
     October 26, 2017 [i]ssued by the Pennsylvania State Police,
     Bureau of Forensic Services, Greensburg Regional laboratory,
     authored by John J. Wall, Forensic Scientist 2. All of the exhibits
     were admitted without objection. [Appellant] stipulated to the
     admission of Commonwealth’s Exhibit “6” without the testimony
     of the author.

            At trial, Lt. Grooms testified that he has approximately 28
     years of experience employed as a law enforcement officer in
     Florida and in Pennsylvania, currently with the Butler City Police.
     He testified that on April 29, 2017, while working the 8:00 p.m.
     to 8:00 a.m. shift as the patrol lieutenant, he had the occasion to
     come into contact with [Appellant]. He explained that the 911
     center called the police to report that a gold Buick parked in the
     area of South Washington and West Wayne Streets in the city of
     Butler appeared to have two passed[-]out occupants, possibly
     overdose victims. Lt. Grooms testified that he was the first officer
     to arrive and observed that the vehicle was parked in front of 402
     South Washington Street. A female was in the driver’s seat and
     [Appellant] was in the passenger’s seat. At this time, assisting
     police officers arrived on scene. Lt. Grooms tapped on the window
     and the occupants woke up. It appeared that the two had been

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       sleeping. Lt. Grooms spoke with [Appellant] while the other
       officers spoke with the female, [Jennifer] Thomas.

              In conversation with [Appellant], Lt. Grooms was
       attempting to ascertain his identity. The officer ran [Appellant’s]
       name through the 911 center for warrants, license and
       truthfulness. The information provided indicated that [Appellant]
       had a suspended driver’s license from Philadelphia. [Appellant]
       told Lt. Grooms that he was from Philadelphia and was staying at
       200 West Washington Street in Butler. Lt. Grooms testified that
       there is no such address in Butler city and that Washington Street
       runs north or south. Lt. Grooms added that he was aware of
       problems at 200 North Washington Street and surmised that was
       [the] address [Appellant] made reference to.[1] At this point
       [Appellant] was free to go.

             Next, the Commonwealth called Lt. John Johnson of the
       Butler City Police. He is also a team leader on the Butler County
       Drug Task Force for the northern section of the county. He has
       served in this capacity for eighteen (18) years. He has a total of
       approximately twenty (20) years of experience in law
       enforcement. Lt. Johnson attended the police academy at Indiana
       University of Pennsylvania and training with the Pennsylvania
       Attorney General’s Office. Additionally, he has participated either
       as an undercover or surveillance officer in thousands of drug buys
       over the years.

              Lt. Johnson testified at trial that in April, 2017, several
       police officers informed him that they had observed people known
       by the police to be drug abusers coming and going from the 200
       North Washington Street address. To that end, Lt. Johnson stated
       that he began to carefully observe that address during the course
       of his work day. He observed vehicles belonging to known drug
       abusers parked near the residence. He saw these individuals
       coming and going from the residence after a very brief stay inside.
       During one of the surveillance periods, Lt. Johnson observed a
       white male run from inside the residence. Two white females
       came out of the house and began yelling in the direction of the
       fleeing man. Lt. Johnson approached the residence and learned
       the fleeing man had committed a robbery inside the house. He
____________________________________________


1The officer also testified that there is “no actual address of 200 South
Washington in the city[,]” which bolstered his presumption that Appellant
meant 200 North Washington Street. N.T. Trial, 11/12/17, at 26.

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     spoke with one of the women, Mary Boring, who said she resided
     there. The officer advised Miss Boring of his observations and
     reminded her that the police station was a hundred feet from her
     house. Lt. Johnson continued to surveil the residence over the
     next two weeks of April. He stated that the activity level subsided.
     Then, according to his testimony, the traffic picked up around April
     18, 2017.

            According to Lt. Johnson’s testimony, Lt. Grooms was aware
     of Lt. Johnson’s ongoing surveillance of 200 North Washington
     Street. Lt. Grooms informed him of his encounter with [Appellant]
     and that [Appellant] said he was staying at that address.
     Thereafter, Lt. Johnson showed [Appellant’s] photograph to Lt.
     Grooms who confirmed that it was the same person. Lt. Johnson
     testified that he and his fellow officers conducted approximately
     60 to 80 hours of surveillance of this residence.

           Lt. Johnson testified that on April 18, 2017, a controlled buy
     of crack cocaine occurred at 200 North Washington Street.
     Another controlled buy was conducted on May 4, 2017[,] and on
     that date at 9:15 p.m., Lt. Johnson executed a search warrant for
     200 North Washington Street.           According to the officer’s
     testimony, when the police arrived at the address and announced
     their presence, no one answered the door. The front door was
     forced open and [Appellant] and Jennifer Thomas were located
     inside and detained.

          [Appellant] and Miss Thomas were initially patted down for
     weapons and then transported to the police station where they
     were searched thoroughly. No drugs or paraphernalia were found
     on [Appellant’s] person. However, a cell phone and $97.00 in
     cash were discovered on [Appellant]; none of the cash was
     connected to the controlled buys of April 18th and May 4th, 2017.

           Lt. Johnson testified that the majority of the heroin and
     crack cocaine, with the exception of a few loose bags of heroin,
     were found in a box on a dresser located in the living room area.
     The officer stated that he encountered [Appellant] for the first
     time when the search warrant was executed. [Appellant] was
     seated on a couch in the living room. In plain view in the living
     room, the police recovered cocaine and heroin, and drug
     paraphernalia on the floor. The digital scale was found in a
     bedroom.




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Trial Court Order and Opinion (TCOO), 5/2/18, at 2-4 (footnote omitted).2

       Based on this evidence, the jury convicted Appellant of all of the offenses

with which he was charged. On January 18, 2018, Appellant was sentenced

to the aggregate term stated supra.            Thereafter, he filed a post-sentence

motion seeking judgment of acquittal for his conspiracy and PWID convictions.

On May 2, 2018, the court issued an order granting Appellant’s motion as to

his conspiracy conviction, but denying his motion regarding the PWID

offenses.

       Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. Thereafter,

the court issued a Rule 1925(a) opinion. Herein, Appellant states two issues

for our review:

       I.     Whether the trial court erred by denying Appellant’s motion
              for judgment of acquittal concerning counts 1 and 2 of the
              information?

       II.    Whether the trial court erred by finding that the
              Commonwealth presented sufficient evidence to convict []
              Appellant of counts 1 and 2 of the information?

Appellant’s Brief at 8 (unnecessary capitalization omitted).

       Appellant’s two issues both challenge the sufficiency of the evidence to

sustain his PWID convictions. See Comonwealth v. Emanuel, 86 A.3d 892,

894 (Pa. Super. 2014) (“A motion for judgment of acquittal challenges the

sufficiency of the evidence to sustain a conviction on a particular charge, and
____________________________________________


2This order disposed of a post-sentence motion for judgment of acquittal filed
by Appellant, and is relied upon by the court in its Pa.R.A.P. 1925(a) opinion.

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is granted only in cases in which the Commonwealth has failed to carry its

burden regarding that charge.”). Thus,

      we apply the following standard of review to sufficiency claims
      which arise in the context of a motion for judgment of acquittal:

         A claim challenging the sufficiency of the evidence is a
         question of law. Evidence will be deemed sufficient to
         support the verdict when it establishes each material
         element of the crime charged and the commission thereof
         by the accused, beyond a reasonable doubt. Where the
         evidence offered to support the verdict is in contradiction to
         the physical facts, in contravention to human experience
         and the laws of nature, then the evidence is insufficient as
         a matter of law. When reviewing a sufficiency claim[,] the
         court is required to view the evidence in the light most
         favorable to the verdict winner giving the prosecution the
         benefit of all reasonable inferences to be drawn from the
         evidence.

Commonwealth v. Stahl, 175 A.3d 301, 303-04 (Pa. Super. 2017), appeal

denied, 189 A.3d 389 (Pa. 2018) (quoting Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000) (internal citations omitted)) (emphasis added in

Stahl omitted).

      Here, Appellant argues that the evidence was insufficient to sustain his

PWID convictions - and, thus, the court should have granted his motion for

judgment of acquittal on those counts - because he did not physically possess

the drugs found in the home at 200 North Washington Street, and the

Commonwealth also failed to prove that he constructively possessed those

narcotics.   Appellant insists that the Commonwealth proved only his mere

presence in the home, which is insufficient to support his PWID conviction.




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      After careful review of the pertinent law and the record in this case, we

are compelled to disagree with Appellant’s argument. Initially, we observe:

      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. 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. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

      Additionally, it is possible for two people to have joint constructive
      possession of an item of contraband.

Commonwealth v. Hopkins, 67 A.3d 817, 820–21 (Pa. Super. 2013)

(internal citations omitted).

      In denying Appellant’s motion for judgment of acquittal regarding his

PWID convictions, the court explained:

             As to [Appellant’s] request for judgment of acquittal of
      Counts 1 and 2, [PWID] heroin and crack cocaine, respectively,
      the court denies the request [for judgment of acquittal]. The court
      believes that viewing all the evidence admitted at trial in the light
      most favorable to the Commonwealth, there [was] sufficient
      evidence to enable the jury to find every element of the crime
      beyond a reasonable doubt. First, the Commonwealth established
      that the suspected heroin and crack cocaine seized at the
      residence were in fact illegal substances.            Second, the
      Commonwealth established, with the legal argument of
      constructive possession, that [Appellant] possessed the illegal
      substances and that he was aware of their presence in the
      residence.    Lastly, the Commonwealth established that the
      quantity and the packaging of the illegal substances proved intent
      to deliver.

                                      ***



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             The evidence produced at trial revealed that [Appellant] was
      staying at 200 North Washington Street in April and May, 2017.
      Police surveillance revealed that there was significant foot traffic
      in and out of the residence during this same time period.
      Controlled buys of illegal drugs were conducted at the residence
      in April and May, 2017. Finally, [Appellant] was in the living room
      of the residence when the search warrant was executed and
      evidence of illegal drug use was also discovered in plain view in
      the living room. The illegal drugs packaged for sale, although not
      in plain view, were also discovered in the living room. The court
      has determined that[,] by an examination of the totality of the
      circumstances, a jury could find that [Appellant] possessed the
      packaged heroin and crack cocaine, albeit, constructively.

TCOO at 5 (footnote omitted).

      We must agree with the trial court that these facts, viewed in the light

most favorable to the Commonwealth, made it possible for the jury to infer

that Appellant constructively possessed the drugs, and that he did so with the

intent to deliver them. We also conclude that this matter is distinguishable

from the case on which Appellant primarily relies, Commonwealth v.

Valette, 613 A.2d 548 (Pa. 1992).       There, our Supreme Court found the

Commonwealth’s evidence insufficient to prove that Valette constructively

possessed drugs found during a raid of an apartment in which he was present,

stressing:
      The record is clear that no contraband was found in the room in
      which [Valette] was sitting at the time entry was made by law
      enforcement officers; and, although $1500.00 in cash was found
      on a shelf in a closet located in that room, there was no evidence
      that [Valette] knew of its existence, or had access to it: nor is the
      possession of cash a crime. Moreover, no personal property of
      [Valette’s] was located in the apartment. The Commonwealth
      placed great reliance on the “fact” that [a police] [o]fficer … asked
      [Valette] whether he lived at the premises and that [he] nodded
      in the affirmative. However, it was established at trial that



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      [Valette] did not speak English, and that the question to which
      [Valette] allegedly nodded was put to him solely in English.

Id. at 550-51. The Court also stressed that “the most significant quantity of

drugs” was found “in a closed case located beneath floorboards” in a second-

floor room, while Valette was on the first-floor at the time the police entered

the apartment. Id. at 551. Based on these facts, the Court concluded that

“the record demonstrate[d] nothing more than [Valette] was present in an

apartment in which drugs were found[,]” which was insufficient to prove

constructive possession. Id.

      In contrast to Valette, here, there was evidence that Appellant was

residing (at least temporarily) at the residence at 200 North Washington

Street during the time-period spanning from his April 29, 2017 interaction

with Lt. Grooms, to the May 4, 2017 search of the home. During that period

of time, Lt. Johnson observed instances of suspected drug activity occurring

at the home. While Lt. Johnson never saw Appellant engaging in any such

activity, he testified that this fact was not unusual, as it is “very common for

someone who is selling crack or heroin to set up inside a residence … [and]

have the buyers come to the house and they will go inside the house [to]

make the purchase and come back out again[,] which doesn’t require the

person responsible to ever leave the house….” N.T. Trial at 52. Moreover,

just hours before the search, officers conducted a controlled buy at the




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residence when Appellant was present inside.3 Additionally, unlike in Valette,

Appellant was located in the same room as the drugs when officers executed

the warrant. There were also drugs in plain view near Appellant. These facts

make Valette distinguishable, and compel us to conclude that there was

sufficient evidence to prove that Appellant constructively possessed the drugs

found inside the home at 200 North Washington Street.4

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019


____________________________________________


3Lt. Johnson testified that after the controlled buy and prior to the search,
only one person, Mary Boring, left the residence, thus demonstrating that
Appellant was inside at the time of the buy. N.T. at 62.

4 We note that Appellant devotes a significant portion of his discussion to
challenging the Commonwealth’s closing argument that he was likely the
“source of the controlled substances” because he is from Philadelphia.
Appellant’s Brief at 19 (quoting N.T. Trial at 85). Appellant avers that this
“argument was highly prejudicial….” Id. at 20. Initially, this claim is waived
based on Appellant’s failure to raise it in his Rule 1925(b) statement. See
Pa.R.A.P. 1925(b)(4)(vii). Nevertheless, we would also conclude that the
propriety of the Commonwealth’s closing argument is not pertinent to our
assessment of the sufficiency of the evidence to support Appellant’s PWID
convictions.

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