J-A06015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

KEITH SIMMONS

                         Appellant                No. 2153 EDA 2013


            Appeal from the Judgment of Sentence July 17, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001504-2012
                                        CP-51-CR-0001833-2012


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                            FILED MAY 29, 2015

      Appellant, Keith Simmons, appeals from the judgment of sentence

entered July 17, 2013, in the Court of Common Pleas of Philadelphia County.

No relief is due.

      During the early morning hours on January 7, 2012, Simmons

perpetrated two gunpoint robberies within two hours and three miles of each

other.   With the aid of a co-conspirator, Simmons held his victims at

gunpoint and robbed them of their wallets and cell phones. On February 21,

2013, a jury convicted Simmons in the consolidated cases of two counts of

robbery, two counts of criminal conspiracy to commit robbery, two counts of

possession of an instrument of crime, two counts of firearms not to be
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carried without a license, two counts of carrying a firearm on the streets of

Philadelphia, and two counts of possession of firearm prohibited.1 At

sentencing, the trial court determined that the counts of conspiracy and

violations of the Uniform Firearms Act merged for sentencing purposes

because the incident was in the nature of a continuing offense. However,

with respect to the charges of possession of an instrument of crime, the trial

court ruled the convictions did not merge for sentencing as Simmons had

wielded a gun in two separate robberies involving two different victims. See

N.T., Sentencing, 7/17/13 at 4-5. The trial court sentenced Simmons to an

aggregate term of 36½ to 79 years’ imprisonment.           This timely appeal

followed.

       We proceed to address Simmons’s first issue, wherein he challenges

the trial court’s decision to deny his request for a continuance. Our review

of a trial court’s continuance decision is deferential. See Commonwealth

v. Brooks, 104 A.3d 466, 469 (Pa. 2014). “The grant or denial of a motion

for a continuance is within the sound discretion of the trial court and will be

reversed only upon a showing of an abuse of discretion.”          Id. (citation

omitted).

       The record reveals that on February 13, 2013, Simmons rejected a

plea offer and indicated his wish to proceed to trial. See N.T., 2/13/13 at

____________________________________________


1
 18 Pa.C.S.A. § 3701; 18 Pa.C.SA. § 903; 18 Pa.C.S.A. § 907; 18 Pa.C.S.A.
§ 6106; 18 Pa.C.S.A. § 6108; and 18 Pa.C.S.A. § 6105.



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23. Jury selection was scheduled to commence the following day. At the

outset of the proceedings on February 14, 2013, Simmons requested a

continuance in order to retain private counsel. The Commonwealth objected

on the basis that Simmons had not previously indicated a desire to retain

private counsel and that both it and the defense were prepared to go to trial.

See N.T., Voir Dire, 2/7/13 at 8. Noting that no defense counsel had yet

been hired and Simmons had failed to indicate that he wished to retain

different counsel when he expressed his intent to proceed to trial the day

before, the trial court denied Simmons’s request. See id. at 9-10.

      We discern no abuse of discretion in the trial court’s denial of the

continuance request. The “right to counsel does not give [a defendant] the

right to delay the trial indefinitely because he is dissatisfied with competent

counsel … ready and willing to represent him.”           Commonwealth v.

Ingram, 591 A.2d 734, 738 (Pa. Super. 1991) (citation and internal

quotation marks omitted). Here, Simmons did not raise his request to retain

new counsel until immediately prior to the commencement of jury selection.

Simmons has not, either at the time he initially made his continuance or in

his appellate brief, explained any reason for his supposed dissatisfaction with

his appointed counsel. Although Simmons baldly maintains that he “suffered

prejudice from being deprived of obtaining counsel of his choice,” Appellant’s




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Brief at 32, he does not elucidate the manner in which he was prejudiced. 2

Given Simmons’s failure to provide any substantial reason why his current

appointed counsel was incompetent or otherwise deficient, we cannot find

that the trial court abused its discretion in denying the last-minute request

for a continuance in order to employ private counsel.

       Simmons next argues that the trial court erred when it permitted to

the Commonwealth to introduce the victim’s Verizon cellular phone records.

When reviewing a trial court’s evidentiary rulings, we note that, “the

admission of evidence is within the sound discretion of the trial court and will

be reversed only upon a showing that the trial court clearly abused its

discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super.

2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted).

       At trial, the victim, Turhan Laws, testified that Simmons robbed him at

gunpoint and stole everything from his pockets, including his cell phone.

See N.T., Trial, 2/15/13 at 47-48.             Laws explained that he later called

Verizon at the behest of the police with instructions to leave his cell phone

active, in case the robber tried to use it.             See id. at 59-60.     The

Commonwealth then proceeded to question Laws regarding the call logs he


____________________________________________


2
  Simmons claims in his brief that the trial court’s decision was influenced by
bias. We do not find any evidence to support the claim of bias. But we
admonish the trial court, the Honorable Chris R. Wogan, for his intemperate
reference to Simmons as an “idiot” for requesting the continuance. See
N.T., Trial, 2/14/13 at 10. Such behavior is simply unacceptable.



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received from Verizon for the calls made during the period after his phone

was stolen, marked as Exhibit C-17.    See id. at 60-61.    Defense counsel

objected, noting that the Commonwealth had previously indicated that a

Verizon record’s custodian would testify regarding the phone records from

the victim’s cellular phone. See id. at 69. On the morning of trial, however,

the Commonwealth provided defense counsel with a copy of the phone

records with an attached certification of authentication from the Verizon

Wireless Custodian of Records.   See id. at 62-63; see also Exhibit C-17.

Defense counsel argued that even with the attached certification the victim

was not a proper witness to authenticate the phone records compiled by

Verizon and that the victim was not qualified to explain what the records

purported to contain.    See id. at 63-67; 69.    The trial court ultimately

overruled counsel’s objection.

      Simmons ultimately concedes on appeal that the call logs were

admissible as self-authenticating records of a regularly conducted activity

pursuant to Pennsylvania Rule of Evidence 902(11). See Appellant’s Brief at

34. Rule 902 provides:

      The following items of evidence are self-authenticating; they
      require no extrinsic evidence of authenticity in order to be
      admitted:

                                    ...

      (11) Certified Domestic Records of a Regularly Conducted
      Activity. The original or a copy of a domestic record that meets
      the requirements of Rule 803(6)(A)-(C), as shown by a
      certification of the custodian or another qualified person that
      complies with Pa.R.C.P. No. 76. Before the trial or hearing, the

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         proponent must give an adverse party reasonable written notice
         of the intent to offer the record--and must make the record and
         certification available for inspection--so that the party has a fair
         opportunity to challenge them.

                                         ...

Pa.R.E. 902(11).

         Simmons now argues that the Commonwealth failed to provide

“reasonable written notice” of its intent to offer the phone records with an

accompanying certification of the custodian of records. Appellant’s Brief at

34-35. This specific objection to the lack of written notice was not raised at

trial.   We are therefore constrained to find that this issue is waived.        See

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

cannot be raised for the first time on appeal.”); see also Commonwealth

v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996) (en banc) (an appellant

may not raise a new theory for an objection made at trial on his appeal).

         Lastly, Simmons contends that he was improperly convicted of two

counts of possession of an instrument of crime, where the evidence

established only a single, continual possession. See Appellant’s Brief at 37.

This claim raises a challenge to the sufficiency of the evidence to support

Simmons’s convictions.

                The standard we apply when reviewing the sufficiency of
         the evidence is whether viewing all the evidence admitted at trial
         in the light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In applying the
         above test, we may not weigh the evidence and substitute our
         judgment for the fact-finder. In addition, we note that the facts
         and circumstances established by the Commonwealth need not
         preclude every possibility of innocence. Any doubts regarding a

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      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced is free to believe all, part or
      none of the evidence. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      An individual commits the offense of possession of an instrument of

crime if he or she “possesses any instrument of crime with intent to employ

it criminally.” 18 Pa.C.S.A. § 907(a).

      Instantly, despite the jury’s conviction of two separate conspiracy

charges, the trial court merged Simmons’s multiple convictions of conspiracy

and violations of the Uniform Firearms Act as it found that the conspiracy

was in the nature of a continuing offense.     However, the court refused to

merge the separate convictions for possession of an instrument of crime, on

the basis that Simmons’s use of “a handgun in the commission of two

separate robberies that occurred over an hour apart in two separate


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locations approximately two miles apart,” Supplemental Trial Court Opinion,

5/6/14 at 5, evinced the development of two separate and distinct intentions

to use a firearm criminally.

      In reaching this conclusion, the trial court relied upon the Pennsylvania

Supreme Court’s decision in Commonwealth v. Andrews, 768 A.2d 309

(Pa. 2001). In Andrews, the appellant argued that his continuous

possession of a handgun during the course of two separate robberies

rendered the evidence insufficient to support his conviction of two counts of

possession of an instrument of crime.       See id. at 317.     Rejecting this

reasoning, the Supreme Court affirmed that “it is the actor's criminal

purpose that provides the touchstone of his liability for possessing an

instrument of crime.”      Id. at 317-318 (citations and internal quotes

omitted). Thus, the court reasoned that the “use of a firearm in committing

an offense bears upon the element of intent,” such that where the jury had

convicted Andrews of two separate conspiracies to commit robbery, “there

was sufficient evidence from which the jury could conclude that Andrews'

intention to employ the firearm criminally was also separately developed as

part of each conspiratorial agreement.” Id. at 318.

      Herein, of course, the trial court determined that the conspiracy to

commit the robberies developed as a course of continuing conduct, rather

than two separate conspiracies.       Even in the absence of two distinct

agreements to commit the robberies, we are satisfied that the evidence

sufficiently established that Simmons brandished a firearm with the intent to

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employ it criminally during the course of two separate and distinct robberies,

such that his conviction and sentence on each count of possession of an

instrument of crime was proper.

      Judgment of sentence affirmed.

      Judge Ott joins in the memorandum.

      Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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