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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1947 EDA 2019


              Appeal from the PCRA Order entered June 6, 2019
               In the Court of Common Pleas of Monroe County
              Criminal Division at No: CP-45-CR-0001013-2016

BEFORE: BENDER, P.J.E., STABILE, and MURRAY, JJ.

MEMORANDUM BY STABILE, J.:                              FILED MAY 4, 2020

     Appellant, Rasheen Simmons, appeals from the June 6, 2019 order

entered in the Court of Common Pleas of Monroe County denying his petition

for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

     The PCRA court provided the following factual background:

     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
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      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].

PCRA Court Opinion and Order, 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 of an involuntary confession and habeas corpus relief,

claiming the Commonwealth failed to establish a prima facie case on the

charges involving person not to possess firearms, possession, and possession

with intent to deliver.    Following a hearing, the court denied Appellant’s

motion. See Order, 3/24/17.


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      At the conclusion of a trial conducted on June 12 and 13, 2017, the jury

found Appellant guilty of the three felony counts of PWID, criminal conspiracy

to commit PWID, five counts of EWOC, criminal use of a communication

facility, three counts of intentional possession of a controlled substance, and

use/possession of drug paraphernalia.      The jury acquitted Appellant of the

remaining charges.

      With the benefit of a pre-sentence investigation report, the court

sentenced Appellant on September 8, 2017 to an aggregate term of

incarceration of 66 to 132 months, with time credit running from March 1,

2016. Appellant filed a motion for reconsideration on September 18, 2017.

The court denied the motion on September 25, 2017. Appellant did not file a

direct appeal.

      On August 30, 2018, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and subsequently filed an amended petition on

Appellant’s behalf.

      Following a hearing on February 4, 2019, the PCRA court denied the

petition in all respects with the exception of granting Appellant’s request that

his direct appeal rights from his September 8, 2017 judgment of sentence be

reinstated. The court authorized Appellant to file a direct appeal within thirty

days of the order, Opinion and Order, 6/6/19, at 16, and Appellant timely filed




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a direct appeal nunc pro tunc.1         He also filed this timely appeal challenging

the court’s denial of his amended PCRA Petition. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

        Appellant asks us to consider five issues in this appeal:

        1.     Whether the trial court erred as a matter of law and abused
        its discretion in failing to find counsel was ineffective in failing to
        request suppression of evidence based upon a flawed search
        warrant?

        2.     Whether the trial court erred as a matter of law and abused
        its discretion in failing to find counsel was ineffective in failing to
        request a Franks[2] hearing based upon false statements in the
        affidavit which led to the search warrant?

        3.     Whether the trial court erred as a matter of law and abused
        its discretion in failing to find counsel was ineffective in failing to
        request suppression of evidence based upon fruit of the poisonous
        tree?

        4.     Whether the trial court erred as a matter of law and abused
        its discretion in failing to find counsel was ineffective in failing to
        request dismissal of the charges based upon illegally obtained
        evidence?
____________________________________________


1   Appellant’s appeal nunc pro tunc is docketed at 1948 EDA 2019.

2 Franks v. Delaware, 438 U.S. 154 (1978). As per our Supreme Court
recognized in Commonwealth v. Iannoccio, 480 A.2d 966 (Pa. 1984):

        [Franks] held that, where a defendant makes a substantial
        preliminary showing that a false statement was knowingly and
        deliberately, or with reckless disregard for the truth,
        included by an affiant in his application for a search warrant and
        where the alleged false statement was necessary to a finding of
        probable cause, the Fourth Amendment requires that a hearing be
        held at defendant’s request so that he might challenge the
        veracity and integrity of the warrant.

Id. at 974 n.4 (emphasis added).

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      5.     Whether the trial court erred as a matter of law and abused
      its discretion in failing to find counsel was ineffective in failing to
      request suppression of evidence recovered which exceeded the
      scope of the warrant?

Appellant’s Brief at 5-6.

      “On appeal from the denial of PCRA relief, our standard of review is

whether the findings of the PCRA court are supported by the record and free

of legal error.”   Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa.

2003) (citation omitted). To prevail on a claim of ineffective assistance of

counsel, a petitioner must plead and prove: (1) that the underlying issue is

of arguable merit; (2) that counsel had no reasonable strategic basis for the

action or inaction; and (3) that counsel’s error prejudiced the petitioner, such

that the outcome of the underlying proceeding would have been different but

for counsel’s error. Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa.

2014). We presume that counsel was effective, and the petitioner bears the

burden of proving otherwise. Id. at 311. A petitioner’s failure to prove any

of the three prongs is fatal to the petition. Id.

      In his first two issues, Appellant attacks the search warrant itself and

argues PCRA court error for failure to find trial counsel ineffective with respect

to the warrant. “In these claims, [Appellant] argues that his trial counsel was

ineffective for failing to: request suppression of evidence based upon a flawed

search warrant [and] failing to request a Franks Hearing.”            PCRA Court

Opinion and Order, 6/6/19, at 7.




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      At trial, the detective who applied for the search warrant testified that

he received a report of a burglary at the Bartell residence where Michael

Bartell (“Michael”) lived with his grandparents.      Michael said he heard

someone in the kitchen of the home and told his grandmother he would go

downstairs to investigate. When he arrived downstairs, he was confronted by

a black male who pushed Michael into a glass table before leaving the home.

Michael claimed he chased the male outside and, after being put into a

headlock, he was hit by another black male. Both males ran from the Bartell

home in the direction of Summit Avenue. Notes of Testimony, Trial, 6/12/17,

at 64-65.

      On follow-up with Michael’s grandfather, the detective learned the serial

number of the Canon camera and asked for information relating to the

purchase of the camera.     The detective subsequently received information

from a neighbor indicating she heard about the burglary and was aware a

camera was stolen. “And she saw [Appellant] with that camera or a camera

similar to that. And that she spoke to [Appellant] about it and he said he got

it from a burglary at the Bartell residence.” Id. at 66-67. The detective spoke

with the neighbor’s husband as well. Id. at 67. The detective then applied

for a search warrant for “[t]he camera, [] the carrying case for it, the camera

strap, the batteries for it, the SD card, USB cables, the manual software for

it, as well as rope similar to the rope that [police] found in the roadway, and

black-colored gloves.” Id. at 68.




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      It was subsequently determined that Michael staged the burglary.

Therefore, Appellant claimed the information detailing the burglary set forth

in the first four paragraphs of the warrant was untrue, leaving only information

obtained from a confidential informant who, as noted above, informed officers

that Appellant was in possession of a red Canon T 5 Rebel camera, carrying

case, and other accessories.

      As the Commonwealth observes:

      Although police later learning that Michael Bartell had provided
      false information regarding the robbery, this does not change the
      fact that Edward Bartell was deprived of his property and a
      burglary occurred at his residence. It only changed the manner
      in which the circumstances occurred.

      Further, [Appellant] has not made a single showing that police
      deliberately included false information in the affidavit. In fact the
      opposite is true. The record demonstrates that corroborative
      evidence of a home invasion was located when police initially
      investigated. Had a Franks hearing occurred, the information
      available would have shown that police located tool marks on the
      back door of the residence (indicating a forced entry), a television
      which was moved from its stand, broken glass on the floor, and
      while canvassing the area where the suspects were last seen,
      police found nylon rope and black gloves. This was all consistent
      with the information provided regarding the home invasion.
      Further, the CI provided information to [the detective] that
      corroborated the home invasion and [Appellant] was in possession
      of the stolen items.

Commonwealth Brief at 9 (emphasis in original; some capitalization omitted).

      As the PCRA court explained, Appellant argues “the first four paragraphs

of the affidavit of probable cause for the search warrant are untrue which

leaves only the information by the CI.”       PCRA Court Opinion and Order,

6/6/19, at 8. “In analyzing whether a warrant was supported by probable

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cause, judicial review is confined to the four corners of the affidavit.”

Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003).

      “Probable cause to issue a search warrant has been defined as
      those facts reasonably necessary to show (1) that the items
      sought are connected with criminal activity, and (2) that the items
      will be found in the place to be searched.” Commonwealth v.
      Gray, 469 A.2d 169, 173 (Pa. Super. 1983) (citation omitted).
      “In determining whether probable cause exists to issue a search
      warrant, . . . [a] ‘totality of the circumstances’ test as set out in
      Illinois v. Gates,” should be applied. 462 U.S. 213 (1983).
      Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa. Super.
      1996) (citation omitted).

PCRA Court Opinion and Order, 6/6/19, at 8.

      As the PCRA court recognized, a warrant based on a deliberate or

knowing misstatement of fact would be invalid. Further, under Franks and

Iannoccio, supra, if Appellant made a substantial preliminary showing that

the false statement was knowingly and deliberately made and was necessary

to establish probable case, Appellant would be entitled to a hearing to

challenge the veracity of the warrant. Neither of those situations exists here.

The affiant of the warrant did not make any deliberate or knowing

misstatement of fact and Appellant did not establish that the affiant made a

deliberate or knowing false statement. Rather, the statements were based on

the affiant-detective’s investigation and the information obtained from

Michael, Michael’s grandfather, and neighbors with first-hand knowledge of

Appellant’s possession of the camera and accessories.

      Based on the totality of the circumstances, we conclude the PCRA court

correctly determined there was probable cause to issue the warrant. Because


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Appellant has not established either his claim of a flawed warrant or his

assertion of entitlement to a Franks hearing, he has not carried the burden

of showing either of his first two issues is of arguable merit or adversely affect

the outcome of the proceedings. Appellant has not established trial counsel

ineffectiveness for failing to seek suppression based on either claim.

Therefore, the PCRA court did not commit error of law. Appellant’s first and

second issues fail.

      In his third issue, Appellant contends his counsel was ineffective for

failing to suppress evidence that constituted fruit of the poisonous tree. In

his fourth issue, he argues that the evidence was illegally obtained.      As the

PCRA court recognized, “Evidence constitutes fruit of the poisonous tree, and

must be suppressed, if it was obtained by ‘exploitation’ of the illegality.” PCRA

Court Opinion and Order, 6/6/19, at 13 (quoting Commonwealth v.

Shabezz, 166 A.3d 278, 290 (Pa. 2017) (additional citation omitted)). As

explained above, Appellant failed to demonstrate that the evidence was

obtained by means of an illegal warrant. Therefore, there is no “fruit of the

poisonous tree” and Appellant has not proven the evidence was illegally

obtained. There is no arguable merit to Appellant’s third or fourth claims.

Therefore, the PCRA court did not commit error in failing to find counsel

ineffective.

      Finally, Appellant asserts the PCRA court erred because it did not find

trial counsel ineffective for failing to seek suppression of evidence recovered

beyond the scope of the search warrant. Appellant argues that once the police

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recovered the camera, camera case, and accessories, there was no reason to

continue the search, especially a search of small containers. However, the

search warrant included small items, such as a battery, SD memory cards,

and other items that could have been located in the small containers. We

agree with the PCRA court that the search did not exceed the scope of the

warrant.   Therefore, trial counsel was not ineffective for failing to seek

suppression of the evidence obtained.             Further, Appellant failed to

demonstrate that the claim was of arguable merit or that trial counsel’s actions

adversely affected the outcome of the proceedings. The PCRA court did not

commit error of law for failing to find trial counsel ineffective.

      Each of Appellant’s issues lacks merit. Because the PCRA court’s factual

findings in addressing Appellant’s issues are supported by the record and its

conclusions are free of legal error, we shall affirm the June 6, 2019 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/04/2020




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