J-S21034-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

ALEEM MAYS 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2183 EDA 2023 

Appeal from the Judgment of Sentence Entered July 24, 2023 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003461-2022 

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J. 

MEMORANDUM BY MURRAY, J.: FILED JULY 17, 2024

 Aleem Mays (Appellant) appeals from the judgment of sentence imposed 

after his non-jury convictions of one count each of possession with intent to 

deliver a controlled substance (PWID) and possession of a controlled 

substance (possession).1 We affirm. 

 From the evidence adduced at trial, the trial court made the following 

factual findings: 

Officer James Reilly (Reilly) has served has a Philadelphia Police 

Officer for 29 years[, including] 26 years as a member of the 

Narcotics Strike Force and three years as a member of the 

Highway Patrol. N.T., 5/12/23, at 10-11. Reilly has undergone 

specialized training—from the DEA, ATF, Narcotics Task Force, and 

Police Academy—throughout his time on the Narcotics Strike 

Force. Id. at 11. The training include[d] observing drug 

transactions, drug sales, drug smells, and drug packaging. Id.

During his time with [the] Highway Patrol, Reilly also had 

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1

 35 P.S. §§ 780-113(a)(30), 780-113(a)(16). 
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opportunities to respond to alleged drug transactions. Id. During 

his 26 years with the Narcotics Strike Force, Reilly has conducted 

well over a thousand plainclothes surveillances and has been the 

“eyes” on well over a thousand surveillances. Id. at 12. The 

“eyes” on a surveillance is the term used for the person observing 

the alleged drug transaction. Id. at 10. Reilly testified that he 

is familiar with the area of the 5700 block of Filbert Street in 

Philadelphia, and he had made drug arrests on that block before. 

Id. at 14.... 

On March 28, 2023[,] at about 6:30 p.m.[,] Reilly was on 

the 5700 block of Filbert Street [when he] came into contact with 

[Appellant]. Id. at 16. [Appellant] was in the front passenger 

seat of a Ford Taurus that was [parked] directly in front of Reilly’s 

car. Id. at 17-18. ... In addition to [Appellant], there were two 

other people in the [Taurus]—Jules Williams [(Williams), a female] 

who was in the driver’s seat[,] and another male who was in the 

back seat behind the driver. Id. at 18, 49. 

Reilly observed another woman approach the [Taurus] and 

knock on the front passenger side window. ... That window was 

lowered, and Reilly testified that he saw the woman hand money 

into the [Taurus] and receive a small object in return. Id. at 19. 

Reilly clarified that [after] the woman knocked on the front 

passenger window, she handed money into the front passenger 

window ..., and a hand came out of the front passenger window ... 

and gave the woman the objects. Id. at 20, 47, 49. 

Reilly believed this to be a drug sale. He testified that this 

was a familiar transaction—the exchange of money for small 

objects—and was consistent with narcotics sales. Reilly also 

testified that the interaction had the same pattern of narcotics 

sales that he had observed many times before. Id. at 21. 

After observing the event, Reilly contacted [other officers] 

and directed them to stop the woman who had approached the 

front passenger side of the [Taurus,] after she turned from Filbert 

[Street] onto 57th Street. Id. at 22. Reilly was informed by 

another officer that the woman [had been] stopped, and Reilly 

then instructed his colleagues to investigate the occupants of the 

[Taurus,] which they did. Id. at 22-24. 

[Appellant], seated in the front passenger seat, had [no 

contraband or currency] on his person at that time. Id. at 24. 

[Williams] had $22 in U.S. currency, a handgun tucked down the 
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front of her pants, and 21 black zip-lock packets of crack cocaine 

with gold skull emblems[. Id. at 24.] ... The man in the rear seat 

located behind the driver had $20 in U.S. currency, a loaded .380 

caliber gun in his waist[,] and several bags of marijuana. Id. at 

40-41.... 

[Williams] told Reilly that she was [Appellant’s] sister and 

that [Appellant] had given her the objects (the gun[,] the 21 

packets of crack cocaine[,] and the money) that she had on her 

person.[2] Id. at 41. This statement is corroborated by the fact 

that while Reilly saw the transaction (money for small objects) 

between the woman who approached the [Taurus] and the person 

([Appellant]) in the front passenger seat of the car, [Appellant] 

did not have [any contraband or currency] on him when the 

officers [searched him]—not even the money that Reilly testified 

he saw being given to [Appellant]. Id. at 19, 21, 24, 47, 49. 

Later, Reilly obtained a search warrant for the [Taurus] and 

... seized: (1) $105.00; (2) a blue package of marijuana; and (3) 

unused packaging that is typically used for packaging drugs. Id.

at 42. 

Trial Court Opinion, 10/4/23, at 6-10 (citations and paragraph breaks 

modified; footnotes and paragraph numbering omitted; footnote added). 

 The Commonwealth subsequently charged Appellant with the above 

offenses, as well as conspiracy to commit PWID.3 Hamilton Ringgold, Esquire 

(defense counsel), represented Appellant. 

On May 12, 2023, the non-jury trial commenced, with Officer Reilly 

testifying as the Commonwealth’s only witness. See N.T., 5/12/23, at 4-8. 

The Commonwealth had partially completed Officer Reilly’s direct 

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2

 The trial court noted Appellant’s counsel did not object to Reilly’s testimony 

regarding Williams’s statement. Trial Court Opinion, 10/4/23, at 10 n.6. 

3

 18 Pa.C.S.A. § 903(a). 
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examination, when the court crier alerted the trial court that an on-the-record 

colloquy had not been conducted regarding Appellant’s waiver of his right to 

a jury trial. See id. at 25-28; see also Trial Court Opinion, 10/4/23, at 12. 

Following a recess, the trial court indicated it would “do the colloquy now....” 

N.T., 5/12/23, at 28. The court advised Appellant that it was “not 

presupposing what any of [Appellant’s] answers would be,” and that Appellant 

still had an opportunity to “make [his] decision” whether to waive his right to 

a jury trial. Id. 

The court then conducted an extensive colloquy, and Appellant waived 

his right to a jury trial and requested a non-jury trial. Id. at 28-38. During 

the colloquy, defense counsel agreed he did not “know any reason why 

[Appellant] should not be permitted to waive a jury trial.” Id. at 37.4

After the colloquy, the trial court indicated the trial would resume, 

stating: 

All the previous testimony, objections, rulings, everything that 

went on before is incorporated. We don’t have to start from 

square one and go through all that again. We all understand that’s 

where we are? 

Id. at 38. Defense counsel indicated his agreement with this course of action, 

and the trial resumed. Id. at 38-39. 

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 Additionally, the record includes two jury trial waiver forms signed by 

Appellant and defense counsel, both dated May 12, 2023. The assistant 

district attorney and the trial court also signed one of the forms. In its opinion, 

the trial court noted the record is unclear whether these forms were signed 

before or after trial commenced. Trial Court Opinion, 10/4/23, at 11 n.9. 
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At the trial’s conclusion, the trial court convicted Appellant of PWID and 

possession, and acquitted him of conspiracy. On July 24, 2023, the trial court 

sentenced Appellant to 6 to 12 months in prison, followed by 3 years of 

probation, for his PWID conviction. The trial court imposed no further penalty 

for Appellant’s possession conviction. No post-sentence motion followed. 

Appellant filed a timely notice of appeal. Appellant and the trial court 

have complied with Pa.R.A.P. 1925. 

Appellant presents two issues for our review: 

1. Was the evidence produced at trial ... insufficient to convict 

Appellant of [PWID] ...? 

2. Did the trial court err in not providing to Appellant the proper 

opportunity to waive his right to a jury trial before the 

commencement of trial, in violation of Pa.R.Crim.P. 620 [and] 

621(B)? 

Appellant’s Brief at v (capitalization modified; argument omitted). 

In his first issue, Appellant challenges the sufficiency of the evidence 

underlying his PWID conviction. Id. at 6-10. Appellant argues he cannot have 

constructively or jointly possessed the narcotics found on Williams’s person, 

as they were solely within Williams’s control. Id. at 7-9. He further argues 

Williams’s statement to Officer Reilly that Appellant had given her the drugs 

was not credible. Id. at 10. Finally, Appellant maintains there was no 

evidence that he was the individual who engaged in the hand-to-hand 

transaction with the woman who had approached the Taurus. Id. at 9-10. 

When reviewing a sufficiency claim, this Court 
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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, 

is sufficient to prove every element of the offense beyond a 

reasonable doubt. As an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder. Any question of doubt is for the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact can be drawn from the combined circumstances. 

Commonwealth v. Peralta, 311 A.3d 1, 4 (Pa. Super. 2024) (citation 

omitted). 

 The statute governing PWID prohibits “the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled substance by a 

person not registered under this act....” 35 P.S. § 780-113(a)(30). “To sustain 

a PWID conviction, the Commonwealth must prove both the possession of the 

controlled substance and the intent to deliver the controlled substance.” 

Commonwealth v. Smith, ___ A.3d ___, 2024 PA Super 122, *10 (Pa. 

Super. filed June 10, 2024) (citation and quotation marks omitted). 

The element of possession can be established “by proving actual 

possession, constructive possession, or joint constructive possession.” 

Commonwealth v. Rojas-Rolon, 256 A.3d 432, 437 (Pa. Super. 2021) 

(citation omitted). 

Where a defendant is not in actual possession of the prohibited 

items, the Commonwealth must establish that the defendant had 

constructive possession to support the conviction. Constructive 

possession is a legal fiction, a pragmatic construct to deal with the 

realities of criminal law enforcement. We have defined 

constructive possession as conscious dominion, meaning that the 

defendant has the power to control the contraband and the intent 

to exercise that control. To aid application, we have held that 
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constructive possession may be established by the totality of the 

circumstances. 

Id. at 437-38 (citation omitted). As to joint constructive possession, we have 

observed that 

the power and intent to control the contraband does not need to 

be exclusive to the appellant. Our Supreme Court has recognized 

that “constructive possession may be found in one or more actors 

where the item in issue is in an area of joint control and equal 

access.” Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 

1078, 1094 (2011) (internal citation omitted). 

Id. at 438. 

“It is well settled that all the facts and circumstances surrounding 

possession are relevant in making a determination of whether contraband was 

possessed with intent to deliver.” Commonwealth v. Baker, 72 A.3d 652, 

658 (Pa. Super. 2013) (citation omitted). 

“In Pennsylvania, the intent to deliver may be inferred from 

possession of a large quantity of controlled substance.” 

[Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 

2018)] (quoting Commonwealth v. Lee, 956 A.2d 1024, 1028 

(Pa. Super. 2008)). Where the quantity of the controlled 

substance is not dispositive as to the intent, the court may also 

look to other factors, such as “the manner in which the controlled 

substance was packaged, the behavior of the defendant, the 

presence of drug paraphernalia, and the sums of cash found in 

possession of the defendant.” Brockman, 167 A.3d at 39 

(quoting Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 

(Pa. 2007)). 

Smith, 2024 PA Super 122, *10. 

Here, the trial court determined the evidence was sufficient to sustain 

Appellant’s PWID conviction. See Trial Court Opinion, 10/4/23, at 16-22. The 

trial court highlighted Officer Reilly’s conclusion, “based on his decades of 
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experience,” that he had observed “a narcotic transaction (money for small 

objects) between a woman who approached the [Taurus] and [Appellant,] the 

person sitting in the passenger side of the car....” Id. at 18. The trial court 

determined that, given the positioning of each occupant in the Taurus, 

Appellant was the only individual who could have engaged in this 

hand-to-hand transaction. Id. at 20 n.18. 

The trial court further noted that 

there was evidence of: (1) 21 individually wrapped packets[,] 

each containing a small amount of crack cocaine; (2) that these 

21 packets were given by [Appellant] to [Williams]; (3) that 

money and a gun were also given by [Appellant] to [Williams]; 

(4) that [Appellant] had no money on him when he was arrested[,] 

even though Reilly ... saw [Appellant] receive money from the 

woman who had approached the [Taurus]; (6) that unused 

baggies (which can be used to package drugs) were found in the 

[Taurus]. Moreover, no evidence was presented that there was 

any personal consumption paraphernalia found in the [Taurus] or 

on its occupants. 

Id. at 21-22. The trial court concluded the totality of the evidence “sufficiently 

demonstrate[d] that [Appellant] either actually possessed crack cocaine or 

constructively/jointly possessed it,” and that he “had the necessary intent for 

the PWID conviction....” Id. at 19, 21. 

 We agree with the trial court’s cogent and thorough analysis. Our review 

discloses its factual findings are supported by the record, and its legal 

conclusions are sound. Viewed in the light most favorable to the 

Commonwealth as verdict winner, the evidence established Appellant engaged 

in a hand-to-hand drug transaction with the woman who had approached the 
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Taurus. In light of that finding, Williams’s statement that Appellant handed 

her the drugs and money found on her person was not necessary to sustain 

the verdict. Nevertheless, Appellant’s brief advances no grounds for 

disturbing the trial court’s reliance on that statement as credible. See 

Commonwealth v. Blackham, 909 A.2d 315, 319 (Pa. Super. 2006) (noting 

that the factfinder “bears the responsibility to resolve questions of credibility, 

and, absent extraordinary circumstances, an appellate court will not substitute 

its judgment for that of the factfinder.”) (quoting Commonwealth v. 

Johnson, 838 A.2d 663, 671 (Pa. 2003)). For these reasons, Appellant’s first 

issue merits no relief. 

In his second issue, Appellant argues the trial court violated 

Pa.R.Crim.P. 620 and 621(B) by not conducting Appellant’s jury waiver 

colloquy until after the trial had commenced. Appellant’s Brief at 11-12. 

However, Appellant failed to raise this issue before the trial court, either during 

trial or in a post-sentence motion. Accordingly, the issue is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot 

be raised for the first time on appeal.”). 

Even if not waived, the issue would merit no relief. We review the 

totality of the circumstances surrounding a defendant’s jury waiver to 

determine whether it was voluntary. Commonwealth v. Foreman, 797 A.2d 

1005, 1015 (Pa. Super. 2002). 

Rule 620 provides: 
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In all cases, the defendant and the attorney for the 

Commonwealth may waive a jury trial with approval by a judge of 

the court in which the case is pending, and elect to have the judge 

try the case without a jury. The judge shall ascertain from the 

defendant whether this is a knowing and intelligent waiver, and 

such colloquy shall appear on the record. The waiver shall be in 

writing, made a part of the record, and signed by the defendant, 

the attorney for the Commonwealth, the judge, and the 

defendant’s attorney as a witness. 

Pa.R.Crim.P. 620. See also Pa.R.Crim.P. 621(B) (“At any time before the 

commencement of trial, a waiver of a jury trial or the judge’s approval thereof 

may be withdrawn.”). 

To make a knowing and intelligent waiver, the defendant must know the 

“three basics of a jury trial,” including “the requirements that the jury be 

chosen from members of the community (a jury of one’s peers), that the 

verdict be unanimous, and that the accused be allowed to participate in the 

selection of the jury panel.” Commonwealth v. Mallory, 941 A.2d 686, 696-

97 (Pa. 2008). “A waiver colloquy is a procedural device; it is not a 

constitutional end or a constitutional ‘right.’” Id. at 697. While “an on-therecord colloquy is a useful procedural tool whenever the waiver of any 

significant right is at issue, ... the colloquy does not share the same status as 

the right itself.” Id.

In Commonwealth v. Michaud, 70 A.3d 862 (Pa. Super. 2013), the 

appellant argued his jury waiver was “unintelligent and unknowing” solely 

because “the trial court did not colloquy [him] prior to the start of [his nonjury] trial.” Id. at 873. “[A]t the close of the prosecution’s case, the trial 
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court realized its omission and, at that time, conducted [a lengthy] on-therecord colloquy.” Id. at 872. Though we deemed the issue waived, we 

observed that the appellant’s “bald assertions would not adequately establish 

that his jury trial right had been violated.” Id. at 873. We noted our appellate 

courts “have held on a number of occasions” that “the mere absence of an onthe-record colloquy, alone, does not prove that a defendant unknowingly and 

unintelligently waived his right to a jury trial.” Id. (citing Mallory, 941 A.2d 

at 697). 

Here, Appellant argues: 

When trial commences prior to the court inquiring as to whether 

the defendant has appropriately waived his constitutional right [to 

a jury trial], there is an inherent risk that the commencement of 

the proceedings coerces the accused to then acquiesce to a 

continuation of the proceedings when then offered the opportunity 

to stop, pick a jury, and then begin again. Regardless of whether 

a colloquy is conducted on the record, as in this case, there can 

be no assurance that the commencement of the trial before the 

jury is waived has not tainted the defendant’s waiver of his 

constitutional right. The only appropriate course of action once 

the procedural defect was realized was for the court to declare a 

mistrial and begin again properly. 

Appellant’s Brief at 12. Appellant cites no legal authority in support of these 

arguments. See id.; see also Commonwealth v. Pi Delta Psi, Inc., 211 

A.3d 875, 883 (Pa. Super. 2019) (when an appellant “cites no pertinent 

authority to substantiate [his] claim ... appellant’s issue is waived.”) (citing 

Pa.R.A.P. 2119(a)). Appellant’s claim, like that in Michaud, appears to be a 
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“bald assertion” based solely on the colloquy’s timing. Michaud, 70 A.3d at 

873.5 

 Based on our review, the totality of the circumstances demonstrate 

Appellant’s waiver was knowing and intelligent. Appellant acknowledged his 

understanding of the three essentials of a jury trial during the oral colloquy 

and in the two written waiver forms he signed. See N.T., 5/12/23, at 28-38; 

Jury Trial Waiver forms, 5/12/23. Nothing in the record suggests Appellant 

was pressured or coerced into waiving his jury trial rights or agreeing to 

incorporate the prior testimony, rather than restart the trial after the colloquy. 

N.T., 5/12/23, at 25-28, 38-39.6 Accordingly, Appellant’s second issue merits 

no relief. 

Judgment of sentence affirmed. 

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5

 Though he argues a colloquy conducted after a trial’s commencement 

renders a waiver somehow “inherent[ly] ... tainted,” Appellant fails to 

specifically assert that his own waiver was in fact unknowing or unintelligent. 

See Appellant’s Brief at 11-12. 

6

 The trial court observed that, “if anything, [Appellant] benefitted from how 

this case played out because he was able to make his decision whether to 

waive his right to a jury trial after he (and his attorney) had previewed much 

of the Commonwealth’s evidence.” Trial Court Opinion, 10/4/23, at 30 

(emphasis omitted); see also id. (concluding Appellant’s waiver was knowing 

and intelligent). 
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Date: 7/17/2024