J-S04030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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