Com. v. Tillery

• Citation: 611 A.2d 1245,417 Pa.Super. 26
• Parties: COMMONWEALTH of Pennsylvania v. Albert D. TILLERY, Appellant.
• Decision Date: 18 November 1992
• Court: Superior Court of Pennsylvania

Page 1245

611 A.2d 1245

417 Pa.Super. 26

COMMONWEALTH of Pennsylvania v. Albert D. TILLERY, Appellant.

Superior Court of Pennsylvania.

Argued March 12, 1992.

Filed June 30, 1992.

Petition for Allowance of Appeal Denied Nov. 18, 1992.

James A. Snell, Lebanon, for appellant.

Before POPOVICH, HUDOCK and HESTER, JJ.

HESTER, Judge:

In this appeal, Albert D. Tillery, appellant, contends that during his jury trial, the Commonwealth incorrectly used as incriminating evidence the fact that he had invoked his fourth amendment constitutional right against unreasonable searches and seizures. We agree with this contention, and we reverse and remand for a new trial.

The record reveals the following. Appellant was charged at two separate criminal docket numbers of one count each of receiving stolen property and conspiracy to commit retail theft. The evidence presented against appellant at the jury trial on this matter was succinctly summarized by the trial court:

The pertinent facts as set forth by the record and reviewed in the light most favorable to the Commonwealth, reveal the following. The charges against Defendant stem from an incident which occurred on September 20, 1989, at the Boscov's Department Store at 22nd and Cumberland Streets, Lebanon, Pennsylvania. Loretta Marie Kirst, a Boscov's security guard at the time, testified that [using a hidden camera,] she observed the Defendant and Kenneth Tillery [appellant's nephew,] enter the store on the date in question (N.T. 10). According to Kirst, while Defendant was standing next to Kenneth Tillery, Kenneth removed two watches from the jewelry department and placed them in his pocket (N.T. 11-12). The two men then left the store without paying for the merchandise (11-14).

Thirty minutes later, Kenneth Tillery returned to the store alone (N.T. 13). He went to the jewelry department and stole three additional watches (N.T. 13). William M. Reigle, II, a security guard at Boscov's was notified that Kenneth was leaving the premises with the merchandise (N.T. 22). Reigle followed Kenneth to an automobile in the store parking lot. The trunk of the vehicle was opened and the Defendant was sitting in the driver's seat (N.T. 22-23). Reigle identified himself as a Boscov's security guard and asked to speak to the Defendant (N.T. 23). Defendant ignored Reigle's request, rolled up the car window, and drove away (N.T. 23). Reigle then radioed Kirst who was inside the store and told her the license number of the vehicle and its general description (N.T. 25). He then instructed her to relay this information to the Lebanon City Police Department (N.T. 25).

Shortly thereafter, Brett A. Hopkins, a Cornwall Borough Police Sergeant, stopped the Defendant's vehicle on State Route 322 in Cornwall Borough, Lebanon County, Pennsylvania (N.T. 32). Hopkins asked the Defendant and Kenneth Tillery to step out of the automobile (N.T. 33). After a conversation with these men, the officer found two stolen wristwatches in a sock worn by Kenneth Tillery (N.T. 33). Both men were then arrested (N.T. 33). Since the automobile belonged to the Defendant, Hopkins requested permission from Defendant to search the vehicle (N.T. 34). This request was denied (N.T. 34). As a result, both individuals were taken into custody and a search warrant for the automobile was obtained (N.T. 34). When the trunk of the vehicle was opened, the police discovered three large duffel bags containing various items displaying price tags from numerous retail establishments (N.T. 35). Subsequently, some of these items were identified as having been stolen.

Trial court opinion, 6/10/91, at 3-4.

Based on that evidence, the jury convicted appellant of receiving stolen property and conspiracy to commit retail theft. On July 24, 1991, the trial court imposed a sentence of twelve to twenty-four months imprisonment on each conviction, with the sentences to be served consecutively. Initially, we note that appellant mistakenly filed his appeals from the June 10, 1991 orders denying post-trial motions. In criminal cases, appeals must be taken from the final judgment of sentence. E.g., Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986). However, since the judgments of sentence were imposed within thirty days of the date of the notice of appeal, June 25, 1991, this appeal is reviewable. Commonwealth v. Hamaker, 373 Pa.Super. 510, 512 n. 4, 541 A.2d 1141, 1142 n. 4 (1988) (premature appeal from order denying post-trial motions reviewed since judgment of sentence had been imposed); Commonwealth v. Gumpert, supra (same); Pa.R.A.P. 905(a).

We address first appellant's contention that the evidence was insufficient to sustain his convictions because if he is entitled to relief on this basis, he must be discharged instead of awarded a new trial. Our standard of review in this context is well established.

We begin with the familiar and well established admonition that our standard of review for challenges to the sufficiency of evidence is limited. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence receive equal weight when assessing the sufficiency of the evidence.... All reasonable inferences, consistent with the evidence, must be viewed in the Commonwealth's favor as verdict winner.

Commonwealth v. Grekis, 411 Pa.Super. 494, 504, 601 A.2d 1275, 1280 (1992) (citations omitted). It is within the province of the fact finder to determine the weight to be given to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989).

In the present case, appellant was convicted of conspiracy to commit retail theft. The crime of conspiracy is set forth in 18 Pa.C.S. § 903, which states:

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

We stated previously:

"The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished." Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, [265 Pa.Super. 494, 402 A.2d 546 (1979) ]. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra; Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy "may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact formed." Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).

Commonwealth v. Volk, 298 Pa.Super. 294, 300-01, 444 A.2d 1182, 1185 (1982); see also Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983).

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred....

Commonwealth v. Olds, 322 Pa.Super. 442, 447-48, 469 A.2d 1072, 1075 (1983), quoting Commonwealth v. Lamb, supra; see also Commonwealth v. Grekis, supra.

In the present case, appellant and his nephew acted in concert, appellant had knowledge of the commission of the crime since he viewed it, appellant was present at the scene, and he participated in his nephew's actions by driving the getaway car. In these circumstances, the existence of a conspiracy was established, and appellant's conviction of conspiracy to commit retail theft rests on sufficient evidence.

To convict appellant of receiving stolen property,

it was necessary for the Commonwealth to show three elements beyond a reasonable doubt. The evidence must establish that the property was stolen, that appellant was in receipt, possession or control of it, and that appellant had "guilty knowledge", that is, that he knew or had reason to know that the property was stolen....

Commonwealth v. Grekis, supra, 411 Pa.Super. at 505, 601 A.2d at 1280 (citations omitted).

In the present case, it was established that the property was stolen and further, that appellant had guilty knowledge since he observed the theft. Finally, we conclude that considering the totality of the circumstances, appellant exercised sufficient dominion or control over the goods to establish receipt of them. He owned and was driving the getaway car, in which the goods were located. He attempted to flee with the goods when approached by the security guard. Furthermore, the goods were located in a section of the car over which Kenneth did not have exclusive...