Com. v. Simmons, V. ( 2020 )

J. A17040/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VICTOR LESEAN SIMMONS, : No. 800 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 4, 2019,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0007266-2016
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED JULY 31, 2020
Victor Lesean Simmons appeals pro se from the March 4, 2019
judgment of sentence of 120 to 240 months’ imprisonment imposed after a
jury found him guilty of robbery.1 After careful review, we affirm the judgment
of sentence.
The extensive factual history of this case was summarized by the trial
court in its August 2, 2019 opinion and need not be reiterated here. (See trial
court opinion, 8/2/19 at 2-8.) The relevant procedural history of this case, as
gleaned from the certified record, is as follows: On December 14, 2016,
appellant was charged with robbery, terroristic threats, and related offenses
in connection with his November 2016 robbery of a Wells Fargo Bank in
1 18 Pa.C.S.A. § 3701(a)(1)(ii).
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Delaware County, Pennsylvania. On January 23, 2017, Robert A. Turco, Esq.
was appointed to represent appellant, but appellant ultimately elected to
represent himself following a colloquy and Attorney Turco acted as standby
counsel. (See notes of testimony, 1/8/19 at 15-30.) Following a three-day
jury trial, appellant was found guilty of one count of robbery.2 As noted, the
trial court sentenced appellant to 120 to 240 months’ imprisonment on
March 4, 2019. This timely appeal followed.3
Preliminarily, we note that appellant’s pro se brief to this court fails to
set forth a specific statement of the questions involved, in violation of
Pa.R.A.P. 2111(a)(4). Appellant’s failure to include a statement of the
questions involved is particularly troubling as this requirement defines the
specific issues this court is being asked to review. See Pa.R.A.P. 2116(a)
(stating, inter alia, that “the statement will be deemed to include every
subsidiary question fairly comprised therein. No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”). Nonetheless, as we are able to discern a litany of multi-layered
claims from the “Argument” sections of appellant’s brief, we decline to dismiss
his appeal on this basis. (See appellant’s brief at 7-29.)
2All the other remaining charges were withdrawn prior to the commencement
of trial.
3On April 4, 2019, the trial court ordered appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on April 8, 2019; the trial
court filed its Rule 1925(a) opinion on August 2, 2019.
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Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the trial court, it
is our determination that none of appellant’s claims warrant relief. The trial
court authored a comprehensive, 20-page opinion wherein it discussed all of
appellant’s claims and concluded that they were without merit. We find that
the trial court’s conclusions are supported by competent evidence and are
clearly free of legal error. Specifically, we agree with the trial court that
appellant was not prejudiced after the Commonwealth was permitted to
amend the criminal complaint to add the victim’s name. (Trial court opinion,
8/2/19 at 10-11.) Likewise, we agree that appellant’s contention that the trial
court abused its discretion by allowing the Commonwealth to amend the
complaint to “fit the Commonwealth[’s] case” is baseless. (Id. at 16.) We
further agree with the trial court that appellant failed to articulate any
“meritorious basis” for a continuance to prepare a defense to said amendment.
(Id. at 11.) Additionally, we agree with the trial court that appellant’s claim
that the complaint and information were defective “is devoid of factual and
legal merit[,]” and this case cannot be quashed on this basis. (Id. at 11-14,
16.)
Next, we agree with the trial court that it did not err in denying
appellant’s motion for arrest of judgment, as there was “overwhelming”
evidence to support his conviction for robbery. (Id. at 14-15.) We further
agree with the trial court that appellant’s Pa.R.Crim.P. 600 motion was
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J. A17040/20
properly denied because the record reflects that nearly “all of the delay on the
docket is attributable to [a]ppellant.” (Id. at 15-16.) Additionally, we find
that appellant’s ineffectiveness claim is not cognizable on direct appeal.
Lastly, we agree with the trial court that it did not abuse its discretion by
denying appellant’s motion to represent himself; that “[t]here is no foundation
in the record” for his claim that he did not knowingly and voluntarily waive his
preliminary hearing; and that appellant’s sentence of 120 to 240 months’
imprisonment, based on his status as a second-strike offender, is not illegal.
(Id. at 17-19.)
Accordingly, we adopt the trial court’s comprehensive August 2, 2019
opinion as our own for purposes of this appellate review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/20
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