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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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