BOSTON, Feb. 24, 2015—The state’s highest court today reinstated the conviction of a man convicted of PCP possession after a lower court overturned the conviction, Suffolk County District Attorney Daniel F. Conley said.

In a decision published today, the Supreme Judicial Court reinstated the conviction of TIM CULLITY (D.O.B. 12/18/55) of Chelsea for possession of a Class B substance. After a Nov. 16, 2011, jury-waived trial, a Chelsea District Court judge found Cullity guilty of possessing the powerful hallucinogen and sentenced him to a six-month jail term, suspended for a probationary period of one year. 

Cullity appealed his conviction to the Massachusetts Appeals Court, arguing that the court should have allowed his motion to suppress evidence obtained through the Nov. 5, 2010, motor vehicle stop that led to his arrest.  He did not at any point argue that there was insufficient to prove his guilt.

The Appeals Court last year issued an unpublished decision agreeing with prosecutors that the motion was rightfully denied, but spontaneously reversing Cullity’s conviction on the grounds that the trial evidence was insufficient to prove that he possessed the drugs, which were found within inches of him.

Prosecutors appealed that reversal to the Supreme Judicial Court, which today rejected the Appeals Court’s decision and ruled that the evidence presented at trial was, in fact, sufficient to prove Cullity’s guilt.

“By Cullity’s own admission, he had used PCP the evening he was arrested. There were items in the vehicle highly suggestive of recent drug use.  Indeed, [the Trooper’s] observations of Cullity’s appearance and behavior strongly suggest that Cullity was under the influence of PCP throughout the encounter.  A rational fact finder, including the trial judge, permissibly could find on this evidence that Cullity intended to use the PCP that was found in the vehicle,” the justices wrote.  “In sum, Cullity’s intent to exercise dominion and control over the PCP was established beyond a reasonable doubt.”

On Nov. 5, 2010, State Police stopped the Chevy Tracker in which Cullity was a passenger in the area of Everett Avenue after observing that the vehicle had an inoperable headlight.  Upon approaching the vehicle, the Trooper detected the strong odor of a burnt substance and noted that both the vehicle’s driver and Cullity appeared under the influence of drugs.  After the 23-year-old driver was removed from the vehicle, a partially burnt, hand-rolled cigarette was observed on her seat and a clear plastic bag containing five smaller bags of PCP was found within inches of Cullity’s seat.

In addition to reversing the Appeals Court’s decision, the justices stated that the Appeals Court erred in its decision not to allow Suffolk prosecutors to be heard on the sufficiency of the evidence and should, at a minimum, have asked prosecutors to submit a supplemental brief before reversing the conviction on grounds that had not been raised in the defendant’s appeal.

“The Appeals Court should not have proceeded in this manner. Principles of fundamental fairness require that the Commonwealth have an opportunity to be heard before a conviction is reversed,” the justices wrote.

Assistant District Attorney Dara Kesselheim argued the case on appeal. Cullity was represented on appeal by Jin-Ho King.

–30–

All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.