Com. v. Simmons, D. (memorandum)
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J-S56012-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DWANE SIMMONS Appellant No. 2133 EDA 2012 Appeal from the Judgment of Sentence June 22, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0901071-2005 BEFORE: ALLEN, J., OTT, J., and COLVILLE, J.* MEMORANDUM BY OTT, J. FILED DECEMBER 20, 2013 Dwane Simmons appeals from the judgment of sentence imposed on June 22, 2012, in the Court of Common Pleas of Philadelphia County. Following a non-jury trial, Simmons was found guilty of possession with intent to deliver a controlled substance (heroin), possession of a controlled substance (heroin), criminal conspiracy, and criminal use of a communication facility.1 Simmons was sentenced to a term of imprisonment of 11½ months to 23 months, to be followed by 7 years probation. Based upon the following, we affirm on the basis of the trial court s opinion. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 903, and 18 Pa.C.S. § 7512, respectively. 1 J-S56012-13 The trial court has aptly summarized the facts and procedural history in its Pa.R.A.P. 1925(a) opinion and we adopt its recitation. See Trial Court Opinion, 11/15/2012, at 1 4. In this appeal, Simmons challenges the sufficiency of the evidence to sustain his convictions for possession with intent to deliver a controlled substance and conspiracy.2 The trial court has provided a thorough and well-reasoned discussion of Simmons s sufficiency claims. See Trial Court Opinion, supra, at 5 7 (explaining: (1) the evidence at trial established that Simmons illegally possessed a controlled substance, where police observed Simmons hand an object to another individual, William Palazzo, in exchange for money, after which police followed Palazzo and recovered 13 packets of heroin, each stamped with the words Scar Face, that Palazzo had thrown out of his car ____________________________________________ 2 While Simmons s Statement of Matters Complained of Pursuant to Pa.R.A.P. 1925(b) simply states, in relevant part, the evidence was legally insufficient to support the convictions of PWID and conspiracy, without specifying the elements or elements upon which the evidence was insufficient, we decline to find waiver. See Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (vacating and remanding matter for Superior Court to conduct sufficiency review; overlooking Pa.R.A.P. 1925(b) statement s lack of specificity in relatively straightforward drug case where the trial court apprehended defendant s claim and addressed the merits of sufficiency challenge). In the present case, the issues framed by Simmons in his Rule 1925(b) statement are very similar to the issues set forth in the concise statement filed in Laboy. See id. at 1058 ( I. Evidence of drug trafficking and conspiracy was insufficient. II. Evidence of conspiracy was insufficient. ). Furthermore, in this case, like Laboy, the trial court filed an opinion addressing the sufficiency claims. -2- J-S56012-13 window; in addition, police had observed Simmons participating in two similar transactions the evening prior to the incident, and Simmons was present at a transaction on the following evening during which police bought heroin from another individual, Daniel Ruiz; (2) the evidence at trial established that Simmons illegally possessed a controlled substance with the intent to deliver, where police observed Simmons engage in a number of transactions in which he accepted money in exchange for small objects, each time retrieving those objects from the same white car, and, minutes after the Palazzo transaction, police followed Palazzo and recovered heroin thrown from Palazzo s vehicle, and (3) the evidence at trial established that Simmons conspired with another to illegally possess a controlled substance with intent to deliver, specifically, Ruiz drove Simmons to the Palazzo transaction where Simmons gave Palazzo heroin marked with the words Scar Face, Simmons was with Ruiz when Ruiz sold heroin marked with the words Scar Face to an undercover police officer in the presence of Simmons, and 824 additional packets of heroin marked with the words Scar Face were recovered from a property rented to a woman named Roman, who was also present at the latter sale, on the same night). We agree with the analysis of the trial court and adopt its sound reasoning. Accordingly, we affirm. Judgment of sentence affirmed. Colville, J., concurs in the result. -3- J-S56012-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/20/2013 -4-
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