Com. v. Simmons, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RASHEEN SIMMONS
Appellant No. 1948 EDA 2019
Appeal from the Judgment of Sentence entered September 8, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0001013-2016
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2020
Appellant, Rasheen Simmons, appeals nunc pro tunc from the
September 8, 2017 order entered in the Court of Common Pleas of Monroe
County following his convictions of various drug offenses and endangering the
welfare of children. Appellant argues that the trial court erred in denying his
suppression motion and that the evidence was insufficient to support his
convictions. Following review, we affirm.
In an opinion issued in Appellant’s related case,1 the PCRA court
summarized the factual background common to both cases.
____________________________________________
1 Commonwealth v. Simmons, 1947 EDA 2019, involves Appellant’s appeal
from a June 6, 2019 order at Monroe County Docket No. 1013 CR 2016,
denying his requested relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We refer to those proceedings as “Simmons
PCRA.”
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On February 23, 2016, Detective Ryan Venneman and
Detective/Corporal Lucas Bray of the Pocono Mountain Regional
Police Department (“PMRPD”) responded to a burglary reported
by Michael and Edward Bartell. Michael Bartell is the grandson of
Edward Bartell. The Bartells reported that a red Canon T 5 Rebel
camera with strap and carrying case were stolen from the [Bartell]
residence along with two black photo lenses, a battery charger
and other camera accessories.
During their investigation, Detective Venneman and Corporal Bray
were contacted by a confidential informant (CI) who had
previously provided verified and credible information. The CI
informed them that shortly after the robbery was reported,
[Appellant] was in possession of a red Canon T 5 Rebel camera, a
carrying case and other photo accessories. [Appellant] advised
the CI that he was present at the time of the robbery; however,
he was not an active participant. Based on this information,
Detective Venneman and Corporal Bray determined that the
[Summit Avenue] address the CI had given was the same address
listed for [Appellant] in J-NET. They obtained a search warrant
which was executed on [Appellant’s Summit Avenue] home on
March 1, 2016. During the search, drugs and a weapon [were]
recovered and there were several children present in the home.
As a result, [Appellant] was charged in docket 1013 CR 2016 with
Possession of Firearm, Prohibited, 18 Pa.C.S.A. § 6105(a)(1),
[F2]; Criminal Conspiracy to Possess a Firearm, Prohibited,
18 Pa.C.S.A. § 903, [F2]; [three counts of] Manufacture, Delivery,
or Possession with Intent to Manufacture or Deliver [“PWID”],
[one each for crack cocaine, powder cocaine, and Molly [“MDMA”],
all felonies under 35 P.S. § 780-113(a)]; Criminal Conspiracy to
commit possession with the intent to deliver a controlled
substance, Prohibited, 18 Pa.C.S.A. § 903, [F]; Criminal
Conspiracy with Zugeil Maldonado to commit endangering welfare
of child [“EWOC”]—R.S., R.S., R.S., R.S., and J.S., 18 Pa.C.S.A.
§ 4304(a)(1), [F3]; Criminal Use of Communication Facility, 18
Pa.C.S.A. § 7512(a) [F3]; 3 counts of Intentional Possession of
Controlled Substance by Person not registered, to wit: crack
cocaine, powder cocaine and Molly, 35 [P.S.] § 780-113(a)(16),
[M]; and Use/Possession of Drug Paraphernalia, to wit: packaging
and scales, 35 [P.S.] § 780-113(a)(32), [M].
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Opinion and Order, Simmons PCRA, 6/6/19, at 1-3 (footnote and some
capitalization omitted).
Appellant filed an omnibus pre-trial motion on August 31, 2016 seeking,
inter alia, suppression based on an involuntary confession as well as habeas
corpus relief, claiming the Commonwealth failed to establish a prima facie
case on the charges involving person not to possess firearms charge,
possession, and possession with intent to deliver. Following a hearing, the
court denied Appellant’s motion. See Order, 3/24/17. As the PCRA court
explained:
A trial was held June 12 through June 13, 2017, after which the
jury found [Appellant] guilty of [three counts of PWID, one each
from crack cocaine, powder cocaine, and Molly, all felonies under
35 P.S. § 780-113(a)]; Criminal Conspiracy to commit possession
with the intent to deliver a controlled substance, Prohibited, 18
Pa.C.S.A. § 903, [F]; 5 counts of Endangering Welfare of Children,
18 Pa.C.S.A. § 4304(a)(1), [F3]; Criminal Use of Communication
Facility, 18 Pa.C.S.A. § 7512(a), [F3]; 3 counts of Intentional
Possession of Controlled Substance by Person not registered, to
wit: crack cocaine, powder cocaine and Molly, 35 [P.S.] § 780-
113(a)(16); and Use/Possession of Drug Paraphernalia, to wit:
packaging and scales, 35 [P.S.] 780-113(a)(32),[M]. The jury
acquitted [Appellant of the remaining charges.]
On September 8, 2017, after a pre-sentence investigation, this
court sentenced [Appellant] to an aggregate term of incarceration
of a minimum of 66 months and not to exceed 132 months, with
a time credit commencing March 1, 2016. A motion to reconsider
sentence was filed on September 18, 2017, and this court denied
that motion on September 25, 2017. [Appellant] did not file a
direct appeal.
On August 2018, [Appellant] filed a pro se [PCRA petition.] On
September 20, 2018, we appointed [] Attorney Holly Conway to
represent [Appellant] in this matter and we granted leave for the
filing of an amended PCRA. On October 14, 2018, we granted an
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extension for the filing of an Amended PCRA and ordered that an
Amended PCRA be filed on or before December 31, 2018. On
December 27, 2018, Attorney Conway filed an Amended PCRA on
[Appellant’s] behalf.
PCRA Court Opinion and Order, Simmons PCRA, 6/6/19, at 3-4 (some
capitalization omitted).
A hearing on Appellant’s Amended PCRA petition was held on February
4, 2019. The PCRA court denied the petition in all respects with the exception
of granting Appellant’s request to reinstate his direct appeal rights. The court
authorized Appellant to file a direct appeal within thirty days of the order.
Opinion and Order, Simmons PCRA, 6/6/19, at 16.
In accordance with the order, Appellant filed a notice of appeal nunc pro
tunc to this Court on July 2, 2019. Appellant filed a timely Pa.R.A.P. 1925(b)
statement and the Honorable Stephen M. Higgins filed a Pa.R.A.P. 1925(a)
opinion requesting that this Court affirm for the reasons set forth in the March
24, 2017 opinion issued by the trial judge, the Honorable Margharita Patti
Worthington.
Appellant asks us to consider two issues in this appeal:
1. Whether the trial court erred as a matter of law and abused its
discretion in failing to suppress the statements as set forth in
[Appellant’s] omnibus pre-trial motions?
2. Whether the trial court erred as a matter of law and abused its
discretion in failing to review the evidence in this case and
thereafter deny and dismiss the charges against him?
Appellant’s Brief at 10.
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Appellant’s first issue challenges the trial court’s denial of his motion to
suppress in two respects. He argues his confession was not voluntary, and
contends the trial court improperly denied his habeas corpus motion. In
Commonwealth v. Jones, 121 A.3d 524 (Pa. Super. 2015), this Court
reiterated:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court's legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Id. at 526-27 (quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.
2010) (some alterations omitted)).
In his omnibus motion, Appellant asserted that the circumstances of his
interview by police “were such that [he] was held under duress and in extreme
physical discomfort.” Omnibus Pretrial Motion, 8/31/16, at ¶ 16. He claimed
that “because of his severe discomfort and pain, [he] adopted a strategy of
telling the police what they wanted to hear so that the interview would be
ended and he might get clothed and warm.” Id. at ¶ 17. He suggested that
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the “physical stress and discomfort” placed on him by the police violated his
constitutional rights, rendering the interview invalid. Id. at ¶ 18.
The trial court noted that Appellant “seems to argue that his statements
to the officers were involuntary as a result of the discomfort he was feeling at
the time, and as such should be suppressed.” Opinion, 3/24/17, at 5. The
court acknowledged “the touchstone inquiry” in deciding a motion to suppress
a confession “is whether the confession was voluntary.” Id. (citations
omitted).
The court observed:
At the omnibus hearing and in his motion, [Appellant] made a
number of allegations regarding his physical discomfort while in
custody: he was cold during the interviews because he was not
wearing a shirt, he was in physical pain because the officers would
not give him his pain medication, and he fell while at headquarters
because he had to leave his cane at his house. [His] various
claims were directly contradicted by the testimony of the officers
presented at the hearing. Viewing the totality of the
circumstances, the court finds that [Appellant’s] statements were
voluntary and as such should not be suppressed.
Id. at 6 (some capitalization omitted).
The court went on to recount the testimony from Detective Venneman
and Corporal Bray that the court found credible. For instance, Detective
Venneman admitted Appellant was not wearing a shirt when taken to
headquarters. However, Appellant was given a blanket that he put around his
shoulders. While Appellant was not given pain medication, Detective
Venneman testified Appellant never asked for any. Even if he had, no
medication would have been provided while in police custody. Detective
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Venneman did not observe any physical difficulties and noted that Appellant
did not have a cane when the officers arrived to execute the search warrant.
Also, while Appellant complained of being in pain from a fall at headquarters,
Appellant never reported that he fell and neither officer saw him fall. Id. at
6-7.
Corporal Bray explained that Appellant acknowledged his Miranda
rights both orally and in writing prior to his interview. While Appellant was
shivering at the beginning of the interview, he appeared to be comfortable
after a few minutes and did not exhibit or complain of any physical difficulties
or mobility issues. Both officers testified that Appellant was “coherent,
articulate, and had no difficulties answering questions and recalling
information.” Id. at 7. Our review of the suppression hearing transcript
confirms the officers’ statements and observations.
In his brief, Appellant points to excerpts of his testimony from the
suppression hearing in an attempt to refute the testimony of the officers.
However, Appellant ignores the fact that the Commonwealth prevailed before
the suppression court. As a result, “we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole.” Jones,
121 A.3d at 526.
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“Viewing the totality of the credible evidence presented by the
Commonwealth,’’ the trial court determined that Appellant’s confession “was
a product of an essentially free and unconstrained choice by [Appellant].” Id.
We find no error of law in that conclusion. Appellant is not entitled to relief
with respect to his confession.
In the second part of Appellant’s first issue, he asserts trial court error
for denying his habeas corpus petition. However, Appellant’s conviction
renders moot any defects in the Commonwealth’s case at the preliminary
stages. Commonwealth v. Haney, 131 A.3d 24, 36 (Pa. 2015) (citing, inter
alia, Commonwealth v. Lee, 662. A.2d 645, 650 (Pa. 1995));
Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991). Appellant’s
challenge to denial of his habeas petition is dismissed as moot.
In his second issue, Appellant argues the trial court erred as a matter
of law “in failing to review the evidence in this case and thereafter deny and
dismiss the charges against him.” Appellant’s Brief at 10. In
Commonwealth v. Neysmith, 192 A3d 184 (Pa. Super. 2018), this Court
reiterated:
Our standard of review is de novo, and our scope of review is
plenary, because:
a claim challenging the sufficiency of the evidence is a
question 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.
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Id. at 189 (quoting Commonwealth v. Widmer, 744 A.3d 745, 751 (Pa.
2000)).
Appellant contends the evidence was insufficient to support his
convictions of EWOC and PWID. With respect to EWOC, pursuant to
18 Pa.C.S.A. § 4304(a)(1), “A parent, guardian or other person supervising
the welfare of a child under 18 years of age, or a person that employs or
supervises such a person, commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care, protection or support.”
Appellant suggests “there was no evidence that the house was in such
a deplorable condition to place the child in danger of death or serious bodily
harm.” Appellant’s Brief at 42. Inexplicably, Appellant cites to the transcript
from the omnibus hearing in an attempt to demonstrate insufficiency of
evidence. Reviewing the trial testimony, and doing so in a light favorable to
the Commonwealth as verdict winner, the evidence was sufficient to support
the convictions.
Initially we note that, as of March 1, 2016, Appellant and Ms. Maldonado
were the parents of five children. They included a 2-year old, a set of twins
under the age of two, and another set of twins who were less than a year old.
When the detectives arrived at the residence on March 1, those five children
were in the apartment along with two additional children. The oven door was
open in the kitchen and the oven was on, being used a source of heat. Notes
of Testimony, Trial, 6/12/17, at 79. A firearm was located under the bed in
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the room Ms. Maldonado shared with Appellant. Id. at 85. All five of their
children slept in that room as well. Id. at 167. The apartment had a
cockroach problem and there was an issue with baseboard heating that did
not work properly. Id. As a result of the heating problem, the oven would be
turned on and the door opened to provide heat to the apartment. Id.
Upon arrival of the detectives, an odor of burnt marijuana could be
detected in the enclosed porch area of the apartment. Inside the apartment,
there was an odor of garbage and feces. “[T]here was just a combination of
a bunch of bad odors, and it was very apparent.” Id. at 223. One detective
explained that he spent most of his time searching in the kitchen, where he
encountered “tons” of cockroaches, and where he found the majority of the
drugs in a wooden box, along with two digital scales, baggies (including little
knotted baggies of cocaine), drug paraphernalia, and bullets for the .22 caliber
rifle. Id. at 227, 236, 237. We find the evidence was sufficient to support a
conviction for EWOC.
Appellant also challenges the sufficiency of evidence supporting his
PWID conviction. As this Court has recognized, “In order to convict a
defendant of PWID, the Commonwealth must prove that the defendant
possessed a controlled substance and did so with the intent to deliver it.”
Commonwealth v. Sarvey, 199 A.3d 436, 450 (Pa. Super. 2018) (internal
citation omitted).
In determining whether there is sufficient evidence to support a
PWID conviction, all facts and circumstances surrounding the
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possession are relevant, and the Commonwealth may establish
the essential elements of the crime wholly by circumstantial
evidence. Factors to consider in determining whether the drugs
were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of
the defendant.
Commonwealth v. Bricker, 828 A.2d 1008, 1015 (Pa. Super. 2005).
Appellant suggests the drugs were found in a watch box in the kitchen;
that the drugs were not in plain view; there were many adults in the residence;
and that there was little or no evidence, other than Appellant’s presence, to
establish constructive possession. Consequently, he argues, “the petition for
habeas corpus as it related to the charges of [PWID] should have been
granted.” Appellant’s Brief at 41.
It is unclear why Appellant is advancing an argument involving his
habeas corpus petition. As noted above, that issue is moot. For a sufficiency
analysis, our review focuses on the evidence presented at trial. That review,
and especially the testimony of Detective Corporal Bray, defeats Appellant’s
argument. See Notes of Testimony, Trial, 6/13/17, at 35-80. The detective
not only described the drugs discovered in Appellant’s apartment, the method
of packaging, and the form of the drugs, he also testified as to the numerous
text messages on a phone used by Appellant and Ms. Maldonado that involved
inquiries and arrangements for drug transactions. Viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we find the
Commonwealth proved that Appellant possessed a controlled substance and
did so with the intent to deliver. Appellant’s sufficiency argument fails.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/20
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