Commonwealth v. Simmons

548 A.2d 284, 378 Pa. Super. 79, 1988 Pa. Super. LEXIS 2893
CourtSuperior Court of Pennsylvania
DecidedSeptember 30, 1988
DocketNo. 00885
StatusPublished
Cited by3 cases

This text of 548 A.2d 284 (Commonwealth v. Simmons) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Simmons, 548 A.2d 284, 378 Pa. Super. 79, 1988 Pa. Super. LEXIS 2893 (Pa. Ct. App. 1988).

Opinions

POPOVICH, Judge:

This case is on remand1 to the Superior Court for consideration of the remaining issues raised on appeal, but not addressed by a panel of this Court because of its award of a new trial to the appellant (Derrick Simmons) which was subsequently vacated by the Pennsylvania Supreme Court.2

[82]*82It was the initial position of the panel Majority (written by the now deceased Justice Roberts, joined by Brosky, J., but over the dissenting opinion by Popovich, J), that the closing argument of the prosecution, telling the jury:

... if you acquit (these defendants3) go never to come back ..., never to have to answer again, (but) ... if you convict ... there are appeals and there may be reversals____[4]

[83]*83improperly urged upon the jury a bias in favor of conviction. This was held by the Majority of the panel to have denied the appellant (as well as his codefendant Nathaniel Wests5) a fair trial. To remedy the matter, the judgment of sentence was vacated and a new trial was awarded (to the appellant and his codefendant).

After appeal, the Pennsylvania Supreme Court entered a terse per curiam order reading:

The Orders of the Superior Court are vacated and the matters are remanded to the Superior Court for consideration of the remaining issues raised on appeal. See, e.g., Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986).

Commonwealth v. West & Simmons, 518 Pa. 120, 541 A.2d 739 (1988).

Preceding our inquiry into the issues raised by the appellant, we deem it proper to set forth a factual accounting of the events leading to the case at bar.

Viewing the facts in a light most favorable to the verdict winner, the Commonwealth here, and giving it all reasonable inferences to be derived therefrom, reveal that on the night of November 9, 1979, Michelle Williams answered her door and admitted Aliene Freeman to her house. As she did so, Michelle could see three or four men stabbing William Grant Johnson in his back as he crouched on the [84]*84ground. Although it was late at night, the scene was illuminated by a street light and Michelle Williams recognized two of the attackers as the appellant and one Nathaniel West, both of whom she had known for several years. Ms. Williams called to her mother, who was inside the house, saying that the appellant and West had stabbed Johnson. The mother called the police and Johnson was taken into the Williams’ home. Johnson was transported to the hospital by the police and pronounced dead within minutes of his arrival.

Ms. Williams, who was fourteen at the time, did not make a statement to the police because her mother had instructed her not to give them any information. However, the case was kept open by the police and several years later, as part of the continuing investigation, Ms. Williams did tell police what she had witnessed, and she later testified to these facts at the appellant’s trial.

The complained-of closing argument by the prosecution was objected to at its completion, but, at the time of its making, the court cautioned the prosecutor, in the presence of the jury: “Excuse me, Mr. McGill (the prosecutor). I really do think that you ought to add that the implications of a verdict should play no role in their (jury) reaching a verdict.” Further, to the objections of the appellant and his codefendant to the remarks made, the trial court felt its interruption cured whatever prejudice the remarks may have caused. As stated previously, the Supreme Court ultimately agreed that the appellant and his codefendant were not entitled to a new trial because of the alleged prejudicial closing remarks.

In compliance with the remand order of the Supreme Court, we observe that, save for the “closing argument” allegation raised in Point VIII of the appellant’s brief and already found wanting by the high Court, there are twelve (12) issues raised for our consideration.

To commence with, the appellant argues that the convictions for murder of the first degree, possessing an instrument of crime, and criminal conspiracy were based on [85]*85insufficient evidence, were against the weight thereof and were contrary to law, and that he was entitled to a directed verdict. We disagree.

As to the conviction for murder of the first degree, the appellant does not contend that the Commonwealth failed to prove any element of the crime beyond a reasonable doubt, but, rather, bases his argument that Ms. Williams’ testimony concerning her identification of the appellant and her account of the crime were “fraught with inconsistencies” and “not worthy of belief.” We have made an independent review of the entire record and cannot state Ms. Williams’ testimony is either so unreliable or contradictory as to make the verdict a result of conjecture or surmise rather than reason. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). Ms. Williams was clear in her identification of the appellant. She never altered her testimony that she saw a knife in the appellant’s hand and saw him stab the victim.

We likewise disregard the appellant’s contention that the verdicts for all three convictions were against the weight of the evidence. In reviewing the weight of the evidence, we must look to all the evidence, and when one considers the evidence in its entirety, it cannot be said the resultant verdicts were so against the weight of the evidence as to shock one’s sense of justice. Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983).

Appellant also contends the conviction for criminal conspiracy must be reversed because the Commonwealth failed to prove any agreement to commit a crime. The existence of a common agreement may, of course, be inferred from the evidence of the circumstances surrounding the conspiratorial activities. Commonwealth v. Gordon, 329 Pa.Super. 52, 477 A.2d 1342 (1984). While mere presence at the scene of the crime is insufficient to establish conspiracy, if the accused is not only present at the scene, but is also identified as one of the perpetrators of the crime, the finder of fact may conclude a criminal agreement existed. Commonwealth v. Johnson, 265 Pa.Super. 418, 402 [86]*86A.2d 507 (1979). Certainly, the eyewitness’ testimony placing the appellant, along with Nathaniel West and one or two other unidentified assailants, at the scene, as well as this same testimony establishing the appellant’s participation by stabbing the victim with a knife, is sufficient to support an inference beyond a reasonable doubt that the appellant had entered into a common agreement.

Appellant raises for the first time before this court the specious argument that his conviction for possessing an instrument of crime is invalid because the Commonwealth failed to prove the knife was concealed. It is axiomatic that issues will not be considered for the first time on appeal and the argument is, therefore, waived.

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Related

Com. v. Jaynes, J.
Superior Court of Pennsylvania, 2020
Com. v. Simmons, D.
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Commonwealth v. Savage
157 A.3d 519 (Superior Court of Pennsylvania, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
548 A.2d 284, 378 Pa. Super. 79, 1988 Pa. Super. LEXIS 2893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-simmons-pasuperct-1988.