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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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