J-S16043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAFAEL J. SIMMONS-RIVERA

                            Appellant                No. 831 MDA 2014


            Appeal from the Judgment of Sentence March 14, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0003099-2013


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

MEMORANDUM BY OTT, J.:                                FILED MAY 06, 2015

        Rafael J. Simmons-Rivera appeals from the judgment of sentence

imposed on March 14, 2014, in the Court of Common Pleas of York County

following his conviction by a jury of the charge of delivery of a controlled

substance (cocaine).1       Simmons-Rivera was sentenced to eleven and one-

half to twenty-three months’ incarceration. In his sole issue in this timely

appeal, Simmons-Rivera claims there was insufficient evidence to support

his conviction in that the confidential informant did not testify, no one

testified to seeing any exchange of drugs for money, and there was no

forensic evidence linking him to the crime. See Appellant’s Brief at 6. After



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1
    35 P.S. § 780-113(a)(30).
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a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.2

       Our standard of review for a challenge to the sufficiency of the

evidence is well settled:

       [W]hether[,] viewing all the evidence admitted at trial in the
       light most favorable to the [Commonwealth as 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 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

       The trial court did not author an opinion addressing Simmons-Rivera’s

appeal.     Rather, in the order denying Simmons-Rivera’s post-sentence

motion, the trial court succinctly noted, “We are satisfied that there was

plenty of evidence offered at trial to convict [Simmons-Rivera], and we don’t


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2
  On April 11, 2014, the Commonwealth filed an appeal to the Supreme
Court challenging the trial court’s refusal to apply the school zone
enhancement, pursuant to Alleyne v. United States, 133 S.Ct. 1251
(2013). On May 15, 2014, our Supreme Court noted probable jurisdiction,
holding that appeal along with approximately 44 related cases.



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believe there’s any merit to that claim.” Order, 6/5/2014. While we agree

with the trial court’s conclusion, we further provide a more detailed

recitation of the relevant evidence.

      The Commonwealth’s evidence in this matter is both straightforward

and circumstantial. A controlled buy was arranged between Simmons-Rivera

and the confidential informant (CI).     Prior to the transaction, the CI was

searched, thereby determining he or she did not possess either drugs or

money. The CI was given pre-recorded money to make the drug purchase.

Police Officer Michelle Hoover transported the CI to the buy location.

Specifically, she testified as follows regarding the January 25, 2013

controlled buy:

      A: It’s actually a tricky area. We parked in an alley to the rear
      of 586 West Philly, but it’s a triangular. It’s very hard to get
      back in there and there is a couple of vehicles that were parked
      to the rear of all of those houses because it’s all townhomes and
      they are connected homes. And the target was backed in his
      vehicle and we parked beside him.

      Q: Okay. Now, you said the target, what kind of vehicle was the
      target sitting in?

      A: He was in a silver Dodge Durango.

      Q: And were you able to get the registration for this Durango?

      A: No, I wasn’t. The way it was faced, it was backed in.

      Q: When you pulled in, did you notice anything about this
      Durango?

      A: I noticed that the driver - there was a driver in the vehicle
      and the vehicle was running.


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     Q: Did you see anyone else inside the vehicle at that point?

     A: No, I did not.

     Q: Do you see the person who is sitting in the driver seat here in
     Court today?

     A: Yes, I see Mr. Rivera here today.

     Q: Can you identify him by an article of clothing?

     A: He is wearing a black jacket and blue shirt.

     Q: Your Honor, for the record the Defendant. So you pull into
     this location, I take it you weren’t in uniform at this time?

     A: No, I wasn’t. I was in plain clothes.

     Q: All right. And while the confidential informant was in your
     car, were they reaching for anything, did you see them put
     anything in their pockets at this point?

     A: No.

     Q: What did you observe next?

     A: The confidential informant was the passenger in my vehicle
     and the confidential informant got out of my vehicle and walked
     over to the Dodge Durango and sat in the passenger seat.

     Q: The front passenger seat?

     A: Correct.

     Q: And the Durango, did it have tinted windows?

     A: The side windows were a little bit tinted, but the front
     windshield was not.

     Q: So, you saw the CI get into the front passenger seat. Did
     you see anyone else in the vehicle besides the CI and the
     Defendant?

     A: No, only those two.

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     Q: And what did you observe next?

     A: I viewed them.       They looked like they were having a
     conversation and short transaction leaning towards each other.
     And then the confidential informant got out of the vehicle. They
     were only in the vehicle probably three or four minutes until the
     confidential informant got back in my vehicle.

     Q: And now during this time were you distracted at all, reading
     anything, were you doing anything else?

     A: No, I was not.

     Q: Okay. Did you see the confidential informant meet with
     anyone else?

     A: No.

     Q: What did the confidential informant do after this transaction
     that you observed?

     A: Like I said, they were briefly in the vehicle, maybe three or
     four minutes.     And then after they met, the confidential
     informant walked back into my vehicle directly from the target
     vehicle to my vehicle.

     Q: And are you watching the Durango the entire time?

     A: Yes, I am.

     Q: Did you lose sight of the confidential informant at all?

     A: No.

     Q: How far away were you from the Defendant, Mr. Simmons-
     Rivera?

     A: Probably from me to you.

     Q: Okay. So, the confidential informant returns to you, where
     do you go next?

     A: We went to our office. We met at another location.

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       Q: Did the        confidential    informant   provide   you   with   any
       contraband?

       A: Yes. The confidential informant handed me a cigarette pack
       and I opened it up and I saw there were two little small bags of
       marijuana inside and I closed it up and I put it in the passenger
       door, the little storage area in my door, until we got back to our
       office.

       Q: I am showing you Commonwealth’s Exhibit No. 1. It’s
       already been opened. Can you look inside and tell me if you
       recognize that?

       A: Yes. I recognize that cigarette pack.

       Q: And is that the same cigarette pack that the confidential
       informant handed you?

       A: Yes.

       Q: And you said it had two small bags of marijuana. Did it also
       have some suspected cocaine in there?

       A: Yes, it did underneath. I just didn’t take it out when I first
       got it.

N.T. Trial, 12/12/2013, at 99-103 (request for permission to approach

omitted).

       Because this transaction was part of a larger investigation, Simmons-

Rivera was not immediately arrested.3 The substances were submitted to a

certified laboratory and tested positive as marijuana and cocaine.            It was

also later determined that Simmons-Rivera owned the Durango.


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3
 Simmons-Rivera was arrested on February 6, 2013, approximately two
weeks after the controlled buy.



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      Simmons-Rivera argues this evidence was insufficient because, in part,

the CI did not testify. Such testimony was not required given the extent of

Officer Hoover’s testimony and her observation of the meeting between the

CI and Simmons-Rivera, even though she could not see the exchange of

money for drugs between the CI and Simmons-Rivera. The evidence clearly

demonstrated that the CI did not possess any contraband prior to getting

into the silver Durango with Simmons-Rivera.           After a brief encounter

between Simmons-Rivera and the CI, the CI returned to the police vehicle

without having met any other person. Upon re-entering the police vehicle,

the CI turned over a cigarette pack that contained marijuana and cocaine.

Circumstantially, the only place the CI could have obtained that cigarette

pack was from Simmons-Rivera. Similarly, the lack of fingerprint evidence

connecting Simmons-Rivera to the drugs does not render the conviction

infirm.   Accordingly, there was sufficient evidence to support Simmons-

Rivera’s conviction of delivery of cocaine, and he is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015


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