Com. v. Simmons, Q.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2024
• Docket: 173 EDA 2023
• Status: Unpublished

Opinion

J-S42034-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : QUADIR SIMMONS : : Appellant : No. 173 EDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0003238-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : QUADIR SIMMONS : : Appellant : No. 176 EDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0003236-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : QUADIR SIMMONS : : Appellant : No. 177 EDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0003240-2019

BEFORE: BOWES, J., STABILE, J., and DUBOW, J. J-S42034-23

MEMORANDUM BY STABILE, J.: FILED MAY 8, 2024

Appellant, Quadir Simmons, appeals from the August 1, 2022 judgment

of sentence imposing an aggregate 12 to 50 years of incarceration for

attempted murder, aggravated assault, conspiracy, unlawful possession of a

firearm, and related offenses.

The convictions arose from a car theft that occurred on November 26,

2018, and two related shootings that occurred on November 27, 2018 and

December 1, 2018.1 Surveillance footage of the November 27, 2018 shooting

revealed the presence of a silver Acura SUV with a distinctive dent on the

driver’s side passenger door. Surveillance footage of the December 1, 2018

shooting showed the same vehicle with the same distinctive dent. Police

recovered thirteen .45 caliber casings from the site of the November 27

shooting, and another twenty-nine .45 caliber casings from the site of the

December 1 shooting.

Two days after the December 1 shooting, police observed the Acura SUV

with the distinctive dent near the intersection of 8th and Duncannon Streets in

Philadelphia. The officers activated the lights on the police cruiser, and the

Acura led them on a chase. Three individuals eventually fled from the Acura,

but none was apprehended that day. Police observed one of the fleeing

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1 Our summary of the facts is culled from pages one through six of the trial court’s unpaginated May 2, 2023 opinion.

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suspects discard a black ski mask, a Glock 30 Model S with a round in the

chamber and an obliterated serial number, and a .45 caliber Glock magazine.

An execution of a search warrant for the Acura returned an Apple iPhone

whose screen lit up with an Instagram message from “Qua2ndst.” An

execution of a warrant for the phone revealed that it was registered to Julian

Johnson, Appellant’s co-defendant. Execution of a warrant for the “Qua2ndst”

Instagram account revealed that it belonged to Appellant. Police recovered

Appellant’s phone number from his Instagram account and, using Johson’s

and Appellant’s phone numbers, determined their location on November 27

and 27, 2018, and December 1, 2018. Both men’s phones pinged from towers

near the site of the vehicle theft on November 26, the site of the shooting on

November 27, and the site of the second shooting on December 1, 2018. A

picture recovered from Appellant’s Instagram account depicted the interior of

the Acura. Appellant and Johnson communicated with each other via

Instagram on November 26, 2018.

Two fingerprints recovered from the Acura matched Appellant. DNA

recovered from the discarded Glock implicated Appellant and Johnson. DNA

from the discarded ski mask implicated Johnson. A restoration of the Glock’s

serial number revealed that the gun was sold to Johnson in August of 2018

for $400.00. Forensic testing revealed that the Glock was used in both

shootings, along with one other firearm common to both shootings that was

never recovered.

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On May 20, 2022, at the conclusion of a bench trial, the court found

Appellant guilty of the aforementioned offenses. The court imposed sentence

on August 1, 2022. Appellant’s timely post-sentence motion was denied by

operation of law on December 7, 2022. This timely appeal followed. Appellant

presents four questions:

A. Did the sentencing court abuse discretionary aspects of sentencing as Appellant contends the partially consecutive- in-nature aggregate sentence was excessive and more than necessary to protect the public, vindicate the victims, and rehabilitate Appellant. The sentence was excessive in light of the many mitigating factors such as, but not limited to, exceptionally strong community and familial support, great remorse, Appellant’s need for rehabilitation, and his great potential for complete rehabilitation?

B. Was the evidence insufficient to sustain the convictions for attempted murder and all of the aggravated assault, simple assault, REAP and PIC charges, as the evidence was insufficient to prove beyond a reasonable doubt that Appellant possessed and fired a firearm at any of the victims and he was never identified as being a shooter?

C. Was the evidence insufficient to sustain the conviction for conspiracy to commit murder, as there was no direct evidence that Appellant agreed with anyone to commit any murder?

D. Was the evidence insufficient to sustain the convictions for conspiracy to commit aggravated assault, as there was no direct evidence that Appellant agreed with anyone to commit serious bodily injury to anyone?

Appellant’s Brief at 5.

We begin with Appellant’s challenge to the trial court’s sentencing

discretion. Appellant preserved this issue in a timely post-sentence motion, a

timely Pa.R.A.P. 1925(b) statement, and a Pa.R.A.P. 2119(f) statement in his

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brief. In his 2119(f) statement, Appellant claims he enjoys strong community

support, that he earned his high school diploma while in custody, and that he

has exhibited genuine remorse for his crimes. Appellant’s Brief at 19-20.

Appellant also claims he has great potential for rehabilitation. Id. at 22.

Appellant therefore believes his aggregate sentence was “more than

necessary, especially in light of his remorse. Id. at 21.

We determine the existence of a substantial question on a case-by-case

basis. Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013). “A substantial question exists only

when the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Id. “While a bald claim of excessiveness does not present a

substantial question for review, a claim that the sentence is manifestly

excessive, inflicting too severe a punishment, does present a substantial

question.” Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016).

Moreover, a claim that the sentencing court did not adequately consider

mitigating circumstances does not raise a substantial question.

Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa. super. 2013).

Appellant’s community support, remorse, and good behavior during

custody were offered as mitigating circumstances in relation to Appellant’s

violent assaults. The trial court’s alleged failure to give adequate

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consideration or assign adequate weight to these factors does not raise a

substantial question. The remainder of Appellant’s Pa.R.A.P. 2119(f)

statement amounts to a bald assertion that the sentence was excessive. We

therefore conclude Appellant has failed to raise a substantial question as to

the propriety of his sentence.

Furthermore, were we to address the merits of Appellant’s sentence, we

would affirm for the reasons explained in the trial court’s May 2, 2023 opinion.

Trial Court Opinion, 5/2/23, at 7-9. As the trial court explains, Appellant’s

minimum sentences for attempted murder, aggravated assault, and

conspiracy to commit aggravated assault fell below the guideline range.

Moreover, the sentencing transcript and the trial court’s opinion reflect the

court’s consideration and analysis of the asserted mitigating factors.

Appellant emphasizes his remorse and capacity for rehabilitation, but he fails

to acknowledge that one of the victims of the November 26, 2018 shooting

was left paralyzed from the waist down. The victim of the December 1, 2018

shooting survived multiple gunshot wounds—two in the stomach, one in the

leg, and one in the arm. For all of the foregoing reasons, Appellant cannot

obtain relief on his challenge to his sentence. The trial court acted well within

its permissible discretion in imposing 12 to 50 years of incarceration.

Next, Appellant challenges the sufficiency of the evidence in support of

his convictions for attempted murder, aggravated assault, and all lesser

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offenses involving his use of a firearm. Appellant argues the Commonwealth

did not produce sufficient evidence to identify him as one of the shooters.

Our standard when reviewing the sufficiency of the evidence is whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact- finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt 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. When evaluating the credibility and weight of the evidence, the fact- finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. Super. 2007),

appeal denied, 960 A.2d 838 (Pa. 2008).

The record, construed in light of these principles, reflects that several

days before the first shooting, Appellant and Johnson exchanged Instagram

messages about locating firearms. Cell phone data placed Appellant and

Johnson in the vicinity of the shootings at the time they occurred. Appellant

posted a picture of the interior of the stolen Acura on his Instagram account

on the night of the first shooting. DNA recovered from a handgun used in

both shootings implicated Appellant.

Thus, while the Commonwealth produced no direct evidence that

Appellant was one of the shooters, the record contains circumstantial evidence

which, viewed in a light most favorable to the Commonwealth, is more than

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sufficient to establish Appellant’s identity as one of the shooters. The

Commonwealth may rely wholly on circumstantial evidence to carry its burden

of proof at trial. Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.

Super. 2005). It did so here, successfully.

With his third question presented, Appellant challenges his conviction

for conspiracy to commit murder, arguing that there is no evidence he agreed

with anyone to commit a murder. Again, we are mindful that the

Commonwealth may carry its burden with evidence that his wholly

circumstantial. “In most cases of conspiracy, it is difficult to prove an explicit

or formal agreement; hence, the agreement is generally established via

circumstantial evidence, such as by ‘the relations, conduct, or circumstances

of the parties or overt acts on the part of co-conspirators.’” Commonwealth

v. Johnson, 985 A.2d 915, 920 (Pa. 2009) (quoting Commonwealth v.

Spotz, 716 A.2d 580, 592 (Pa. 1998)). The Pennsylvania Crimes Code defines

conspiracy as follows:

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

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18 Pa.C.S.A. § 903. Murder is an intentional killing. 18 Pa.C.S.A. § 2502(a).

To prove conspiracy, “the trier of fact must find that: 1) the defendant

intended to commit or aid in the commission of the criminal act; 2) the

defendant entered into an agreement with another to engage in the crime;

and 3) the defendant or one or more of the other co-conspirators committed

an overt act in furtherance of the agreed upon crime.” Johnson, 985 A.2d at

920 (quoting Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008)).

Thus, to prove conspiracy to commit murder, the Commonwealth needed to

prove that Appellant agreed with another person to commit an intentional

killing and that one or more of the conspirators committed an overt act in

furtherance of the crime.

The record establishes that the November 27, 2018 victims were injured

as a result of a drive-by shooting involving the stolen Acura. As noted above,

Appellant’s fingerprints were recovered from the Acura and he posted a picture

of the interior of the Acura on the night of November 27, 2018. DNA from the

Glock .45 used in both shootings implicated Appellant and Johnson. These

overt acts, construed in a light most favorable to the Commonwealth as verdict

winner, are more than sufficient to establish that Appellant and Johnson

conspired to commit murder.

With his fourth and final question presented, Appellant challenges his

conviction for conspiracy to commit aggravated assault. Appellant does not

explain how this argument is different in substance from the argument

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pertaining to conspiracy to commit murder. Further, Appellant fails to support

this argument with citation to pertinent authority and citation to the record.

Therefore, he has waived it. Pa.R.A.P. 2119(b), (c); Commonwealth v.

Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020).

Because we have concluded that each of Appellant’s arguments is

lacking in merit or waived, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Bowes joins the memorandum.

Judge Dubow did not participate in the consideration or decision of this

case.

Date: 5/08/2024

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