J-S12001-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RODNEY SIMMONS,

Appellant No. 431 EDA 2012

Appeal from the Judgment of Sentence January 20, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003890-2010

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 08, 2015

Rodney Simmons appeals from the judgment of sentence of five and 

one-half to eleven years imprisonment that was imposed after he was 

convicted of simple assault, retaliation against a witness, and conspiracy. 

We affirm. 

Appellant’s convictions stem from the January 12, 2010 assault of 

Leon Fulton by Appellant and another man who never was identified. The 

assault occurred after Mr. Fulton alerted police to the location of James 

Walker, who was wanted for a 2008 armed robbery and who was arrested 

after Mr. Fulton contacted police. 

The trial court cogently set forth the Commonwealth’s evidence 

produced in support of Appellant’s convictions, and we adopt its factual 

recitation for purposes of this appeal:
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 Even though Leon Fulton did not live at Philadelphia's 

Westport public housing complex, he knew its inhabitants, and 

they knew him. Fulton visited the projects daily to see his 

fiancée, who lived there with her four small children. Also, 

Fulton would occasionally give "hack rides" to the residents—that 

is, he would drive them somewhere in exchange for money. 

 In the late afternoon hours of January 12, 2010, Fulton 

arrived at Westpark and took an elevator to his fiancée's 

eighteenth-floor apartment. In the elevator with him was a man 

named James Walker, who Fulton knew only as "Gump." 

Although Fulton recognized him from Westpark, he had seen 

Walker more recently on a television program that labeled him 

one of Philadelphia's most wanted criminals. Walker had 

managed to elude police for over a year since being identified as 

the perpetrator of a 2008 gunpoint robbery.

 When the elevator reached the eighteenth floor, both Fulton 

and Walker exited. As Fulton entered his fiancée's apartment,

he observed Walker enter an apartment unit directly across the 

hall. Fulton immediately called 911 to alert the authorities as to 

Walker's whereabouts. Police officers arrived shortly thereafter 

and apprehended Walker. 

After the arrest, Fulton became worried. He knew that in 

the projects "if you are a snitch, then you have a problem." N.T. 

10/17/11 at 104. These fears materialized when, shortly after 

the police left with Walker, Fulton heard banging on his fiancée's 

apartment door. Upon opening the door, Fulton was confronted 

by two unknown females who lived across the hall, Walker's 

girlfriend, and an unknown male. The three women yelled that 

they knew Fulton was a snitch and would soon get what he 

deserved. Fulton quickly closed the door and stayed inside.

After the confrontation, Fulton grew concerned that his 

car, which was familiar throughout the Westpark community, 

might be vandalized. He grabbed his keys and set out to check 

on the vehicle, but did not make it out of the building. When he 

reached the ground-floor lobby, Fulton was confronted by 

[Appellant], who he knew only as "Rod" or "Hot Rod," and the 

unknown male who Fulton first saw with the three women who 

threatened him outside his fiancée's apartment. 
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As [Appellant] blocked the exit and stated that he knew 

Fulton was the snitch, the other male stood behind Fulton to 

prevent him from escaping through the entrance door. The two 

men then began throwing punches. Fulton fell to the ground and 

lost consciousness after [Appellant] struck him in the head with 

a blunt object. 

When he regained consciousness, Fulton was still on the 

lobby floor, covered in blood, and his assailants were gone. He 

briefly searched for the car keys that were now missing from his 

pocket before walking to a nearby hospital to receive treatment 

for lacerations to his lip and forehead. Police officers arrived 

soon after, and although Fulton was reluctant to talk for fear of 

further retaliation, he eventually told the officers what 

happened. Fulton also told police that Tyrell Washington, the 

Westpark security guard, had likely witnessed the assault from 

his booth inside the lobby. Later that night, police took a signed 

statement from Washington that corroborated Fulton's story. 

Later, both Fulton and Washington picked [Appellant’s] 

picture out of a photo array, identifying him as one of the two 

assailants. Based on the identifications, detectives secured a 

warrant for [Appellant’s] arrest. When police finally caught 

[Appellant] on February 9, 2010, he was in the same Westpark 

apartment where they had arrested Walker several weeks 

earlier.

Trial Court Opinion, 5//20/2013, at 1-3. 

Based on this proof, Appellant was convicted by a jury of simple 

assault, retaliation against a witness, and conspiracy to commit simple 

assault. He was acquitted of aggravated assault, robbery, intimidation of a 

witness, and conspiracy to commit robbery. This appeal followed imposition 

of the described sentence. Appellant presents these issues for our review:

I. Whether the verdict was contrary to law as based on 

insufficient evidence.
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II. Whether Appellant's sentence was unduly harsh and 

unreasonable.

III. Whether the court erred in denying Appellant's motion to 

dismiss under Rule 600 (G).

Appellant’s brief at 8. 

Appellant’s first contention relates solely to his conviction for 

conspiracy. Specifically, he argues that there was insufficient evidence of an 

agreement between him and the second perpetrator of the assault. 

Appellant’s brief at 17 (“[T]he evidence presented at trial was insufficient to 

prove that Appellant entered into an agreement with the unknown male to 

engage in the crime of assault. There was no testimony of an agreement 

between the individuals to assault Leon Fulton.”). 

Initially, we outline our standard of reviewing the sufficiency of the 

evidence. 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for that 

of the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by

means of wholly circumstantial evidence. Moreover, in applying 

the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the trier 
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of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or 

none of the evidence.

Commonwealth v. Vargas, 2014 WL 7447678, 7 (Pa.Super. 2014) 

(citation omitted). 

The crime of conspiracy is outlined in 18 Pa.C.S. § 903(a):

 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.

Thus, to establish the existence of a conspiracy, the Commonwealth 

must demonstrate that “1) the defendant entered into an agreement with 

another to commit or aid in the commission of a crime; 2) he shared the 

criminal intent with that other person; and 3) an overt act was committed in 

furtherance of the conspiracy.” Commonwealth v. Nypaver, 69 A.3d 708, 

715 (Pa.Super. 2013) (citation omitted). As noted, Appellant challenges the 

proof regarding the first element. It is a well-ensconced principle that, “The 

Commonwealth does not have to prove that there was an express 

agreement to perform the criminal act; rather, a shared understanding that 

the crime would be committed is sufficient.” Id. We employ four factors in 
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determining whether there was a shared understanding between the 

defendant and another actor: “(1) an association between alleged 

conspirators; (2) [the defendant’s] knowledge of the commission of the 

crime; (3) [the defendant’s] presence at the scene of the crime; and (4) in 

some situations, [the defendant’s] participation in the object of the 

conspiracy.” Id. (citation omitted). 

In this case, all four factors are present. Appellant’s anonymous 

cohort threatened the victim while Mr. Fulton was in his fiancée’s apartment. 

Immediately thereafter, that man arrived with Appellant to assault Mr. 

Fulton as the victim was fleeing. The fact that the unidentified male and 

Appellant were associates was supported by this conduct, which indicated 

that the unnamed perpetrator went and retrieved Appellant in order to aid 

him in consummating his threatened retribution against Mr. Fulton for 

contacting police about Walker. 

In addition, Appellant had knowledge of the crime and was present at 

its commission. Finally, he participated in the object of the conspiracy by 

repeatedly striking Mr. Fulton in concert with his cohort. We therefore reject 

Appellant’s challenge to the sufficiency of the evidence supporting the 

existence of an agreement between him and the unidentified man to assault 

the victim. 

Appellant next complains about the length of his sentence. Appellant 

filed a timely motion for reconsideration of his sentence, and his sentencing 
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claim was contained in a supplemental Pa.R.A.P. 1925(b) statement, which 

we granted Appellant permission to file. Hence, the issue is preserved for 

purposes of appeal. 

A defendant does not have an absolute right to pursue a challenge to 

the discretionary aspects of his sentence. Commonwealth v. Raven, 97 

A.3d 1244, 1252 (Pa.Super. 2014). To obtain merits review of such a claim, 

an appellant must include a Pa.R.A.P. 2119(f) statement in his brief. Id.; 

Pa.R.A.P. 2119(b) (“An appellant who challenges the discretionary aspects of 

a sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.”). Additionally, the Pa.R.A.P. 

2119(f) statement must demonstrate “that there is a substantial question 

that the sentence imposed is not appropriate under the Sentencing Code. 42 

Pa.C.S. § 9781(b).” Raven, supra at 1252 (citation and quotation marks 

omitted). A substantial question warranting appellate review of a sentence 

is raised if the defendant avers that “the sentence violates either a specific 

provision of the sentencing scheme set forth in the Sentencing Code or a 

particular fundamental norm underlying the sentencing process.” Id. 

Appellant’s brief contains the necessary statement, and he argues 

therein that his sentence for retaliation against a witness was above the 

applicable guideline ranges and not justified as well as that the trial court 

considered an impermissible sentencing factor. Appellant’s brief at 13-14. 
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Both contentions, contrary to the Commonwealth’s position, raise the 

existence of a substantial question. Commonwealth v. Bowen, 55 A.3d 

1254, 1263-64 (Pa.Super. 2012) (“In every case where a sentencing court 

imposes a sentence outside of the sentencing guidelines, the court must 

provide in open court a contemporaneous statement of reasons in support of 

its sentence. 42 Pa.C.S.A. § 9721.”); Commonwealth v. Allen, 24 A.3d 

1058, 1064-65 (Pa.Super. 2011) (“This Court has recognized that a claim 

that a sentence is excessive because the trial court relied on an 

impermissible factor raises a substantial question.”). 

We therefore will consider the merits of Appellant’s challenge to his 

sentence. Our standard of review is established: “Sentencing is a matter 

vested in the sound discretion of the sentencing judge, and a sentence will 

not be disturbed on appeal absent a manifest abuse of discretion.” Bowen, 

supra at 1263. An abuse of discretion occurs only if “the record discloses 

that the judgment exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will.” Id. (citation omitted). 

Appellant’s position is that his sentence “was unduly harsh and 

unreasonable because the lower court relied on impermissible factors in 

sentencing Appellant above the recommended range.” Appellant’s brief at 

18. This contention relates solely to the sentence imposed on the conviction 

for retaliation against a witness since Appellant received standard-range 

sentences on the simple assault and conspiracy offenses. 
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The sentencing transcript reflects the following. Appellant had a 

significant juvenile record, having been arrested nearly every year between 

the ages of eleven and seventeen. He also had an adult conviction, which 

resulted in a prior score of five. In 1993, at the age of seventeen, Appellant 

“was found guilty of aggravated assault and weapons charges for shooting 

someone” in the face. N.T. Sentencing [Incorrectly Titled Preliminary 

Hearing], 1/20/12, at 7, 8. Appellant received a sentence of ten to forty 

years for those crimes, and he was on parole when he committed this 

assault. 

The Commonwealth also noted that, during the attack, Appellant’s 

unidentified co-conspirator told Mr. Fulton that he would have been shot had 

that individual had his gun with him. Id. Appellant aided an associate of 

Walker in a revenge attack against a man for reporting Walker to police. 

Thus, Appellant was consorting with an armed robber and someone who 

would have shot a citizen for cooperating with police. The district attorney 

also told the sentencing court that Mr. Fulton was “relocated because of this 

incident,” and Mr. Fulton and his family were removed from the projects 

where the assault occurred and placed in a home in a different city. Id. at 

10, 11. At sentencing, Appellant raised no objection to this factual assertion 

by the Commonwealth. 

Appellant also exercised his right of allocution. In lieu of a display of 

remorse, Appellant insisted that he merely had engaged in a fight and that 
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he was not retaliating against Mr. Fulton. Id. He then claimed that he had 

no association with the unnamed assailant, that Mr. Fulton involved 

Appellant in the situation by insisting that Appellant tell the unidentified 

attacker that Mr. Fulton was not a snitch, and that Appellant became 

involved in the altercation only after Mr. Fulton punched Appellant first. Id. 

at 12-13. 

The court elected to sentence in excess of the guidelines on the 

retaliation offense, which had a standard range of 27-33 months plus or 

minus nine months for aggravated/mitigated ranges. It sentenced Appellant 

to three and one-half to seven years on that crime. The court justified its 

sentence based upon Appellant’s lack of remorse, the viciousness of the 

attack, and the fact that the victim had to leave the area after the crime to 

avoid the possibility of further recrimination for his cooperation with police. 

Id. at 17. 

In assailing the sentence, Appellant maintains that the sentence above 

the aggravated range “was inappropriate” in that the “victim’s relocation was 

not a direct result of the offense.” Appellant’s brief at 20. Appellant also 

argues that “the incident was an ordinary retaliation and not an aggravated 

retaliation as the sentencing court stated.” Id. Finally, he characterizes as 

impermissible the court’s consideration of the fact that Mr. Fulton moved. 

Initially, we note that “the sentencing guidelines are advisory in 

nature.” Bowen, supra at 1264. A sentencing court may deviate from 
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them if “it offers reasons for this determination.” Id. We must affirm a 

sentencing court’s departure if the rationale outlined by the sentencing court 

indicate that its decision is not unreasonable. Id. In this case, the three 

outlined justifications fully supported the sentencing court’s decision. 

Appellant unquestionably failed to display remorse and, instead, belligerently 

denied any culpability and blamed the victim. Second, we agree with the 

court’s characterization of the retaliation as vicious. Mr. Fulton was 

rendered unconscious and hospitalized due to the assault, and Appellant’s 

co-conspirator told the victim that he would have been dead if the coconspirator had been in possession of his gun. 

Finally, we disagree with Appellant’s claim that Mr. Fulton’s relocation 

was not the result of this incident as well as Appellant’s suggestion that the 

trial court’s consideration of this fact was improper. Appellant raised no 

objection when the Commonwealth reported at sentencing that Mr. Fulton 

fled due to this assault and fear of further retaliation. The fact that Mr. 

Fulton had to relocate due to this attack is thus supported by the record. 

Furthermore, the impact of the crime on a victim is decidedly a proper 

consideration in the sentencing setting. 42 Pa.C.S. § 9721(b) (emphasis 

added) (“In selecting from the alternatives [available to it, the sentencing 

court] shall follow the general principle that the sentence imposed should 

call for confinement that is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the victim
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and on the community, and the rehabilitative needs of the defendant.”). 

Thus, it was not impermissible for the sentencing court to justify its sentence 

based upon the fact that Mr. Fulton and his family had to flee their home for 

another location due to this assault. We reject Appellant’s position that his 

three and one-half to seven year sentence on the retaliation charge was 

harsh, unreasonable, and an unjustified departure from the guidelines’ 

recommendation. 

Appellant’s final averment is that his Rule 600 rights were violated. 

We assess this issue under the following principles:

In evaluating Rule 600 issues, our standard of review of a 

trial court's decision is whether the trial court abused its 

discretion. Judicial discretion requires action in conformity with 

law, upon facts and circumstances judicially before the court, 

after hearing and due consideration. An abuse of discretion is 

not merely an error of judgment, but if in reaching a conclusion 

the law is overridden or misapplied or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill will, as shown by the evidence or the record, 

discretion is abused.

The proper scope of review is limited to the evidence on 

the record of the Rule 600 evidentiary hearing, and the findings 

of the [trial] court. An appellate court must view the facts in the 

light most favorable to the prevailing party.

Commonwealth v. Armstrong, 74 A.3d 228, 234 (Pa.Super. 2013), aff’d 

on other grounds, 2014 WL 7404544 (Pa. 2014). 

Initially, we note that Rule 600 was amended in 2012, after Appellant 

was tried and convicted; however, those amendments did not alter the 

substantive aspects of Rule 600 and merely re-ordered the rule and 
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incorporated aspects of its interpretation from case authority. Pa.R.Crim.P. 

600, Comments (“In 2012, former Rule 600 was rescinded and new rule 600 

adopted to reorganize and clarify the provisions of the rule in view of the 

long line of cases that have construed the rule”). 

Appellant’s position on appeal is not a model of clarity. He does not 

set forth when the Rule 600 run date commenced and when it expired. He 

merely asserts that the Commonwealth did not display reasonable efforts to 

bring him to trial on two occasions: January 19, 2011, and June 16, 2011. 

Appellant’s brief at 23. As we delineated in Commonwealth v. Colon, 87 

A.3d 352, 358 (Pa.Super. 2014) (citation omitted). 

To determine whether dismissal is required under Rule 

600, a court must first calculate the “mechanical run date,” 

which is 365 days after the complaint was filed. . . . Case law 

also provides that a court must account for any ‘excludable time’ 

and ‘excusable delay.’ Excludable time is delay that is

attributable to the defendant or his counsel. Excusable delay is 

delay that occurs as a result of circumstances beyond the 

Commonwealth's control and despite its due diligence. The only 

occasion requiring dismissal is when the Commonwealth fails to 

commence trial within 365 days of the filing of the written 

complaint, taking into account all excludable time and excusable 

delay.

Thus, the Commonwealth’s failure to try a defendant within 365 days 

from the filing of the complaint does constitute a technical violation of Rule 

600. Id. Nevertheless, if the trial court concludes that “the Commonwealth 

exercised due diligence and the delay was beyond the Commonwealth's 

control, the motion to dismiss shall be denied.” Id. at 359 (citing former 
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Pa.R.Crim.P. 600(G)); see Pa.R.Crim.P. 600(C)(1) (For purposes of 

determining whether trial commenced within the time constraints of Rule 

600, “periods of delay at any stage of the proceedings caused by the 

Commonwealth when the Commonwealth has failed to exercise due diligence 

shall be included in the computation of the time within which trial must 

commence. Any other periods of delay shall be excluded from the 

computation.”). 

Since the Commonwealth is unable to control a trial court’s calendar, 

judicial delay is generally considered excusable delay. Commonwealth v. 

Preston, 904 A.2d 1, 14 (Pa.Super. 2006) (en banc) (citation and quotation 

marks omitted) (“Judicial delay may justify postponing trial beyond the 

adjusted run date if the Commonwealth was prepared to commence trial 

prior to the expiration of the mandatory period but the court was unavailable 

because of scheduling difficulties and the like.”); Commonwealth v. 

Trippett, 932 A.2d 188, 198 (Pa.Super. 2007) (citation and quotation marks 

omitted) (“It is well-settled that the Commonwealth cannot control the 

schedule of the trial courts and that therefore judicial delay can support the 

grant of an extension of the Rule 600 rundate.”). 

The record in this case establishes that the criminal complaint was 

filed on January 14, 2010, and Appellant’s trial commenced on October 13, 

2011, a lapse of 637 days. The trial court herein rendered the following 

findings with respect to the origin of this delay. On June 2, 2010, which was 
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within the Rule 600 run date, “the parties appeared at a scheduling 

conference before Judge Rosalyn K. Robinson. There, the case was listed for 

trial on January 19, 2011, the earliest possible date consistent with the 

court's calendar.” Trial Court Opinion, 5/20/13, at 5-6. Appellant does not 

challenge this factual finding. 

As the present matter was scheduled on June 2, 2010, for the earliest 

possible date on the trial court’s calendar, January 19, 2011, the time 

between June 2, 2010 and January 19, 2011 is not chargeable to the 

Commonwealth under Rule 600. Armstrong, supra at 237 (where trial is 

listed by trial judge for earliest possible trial date on court’s calendar, delay 

between when case was listed and when trial occurred was excusable 

delay); Commonwealth v. Jones, 886 A.2d 689, 702 (Pa.Super. 2005) 

(the date between when the trial is scheduled and when the trial occurred is 

excusable delay if trial court indicates, when scheduling trial, that trial was 

set for earliest possible date on trial court’s calendar); Commonwealth v. 

Nellom, 565 A.2d 770, 773 (Pa.Super. 1989) (“Because the case was 

scheduled for the earliest possible date consistent with the court's business, 

this time is not chargeable to the Commonwealth” under former Rule 1100, 

which was supplanted by Rule 600 when the rules of criminal procedure 

were renumbered). 

The trial court herein then noted that in November 2010, the criminal 

trial division in the judicial district that comprises Philadelphia County “was 
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geographically reorganized into zones based the different detective divisions 

of the Philadelphia Police Department.” Trial Court Opinion, 5/20/13, at 6. 

Due to the reorganization, Appellant’s case was re-assigned to the trial 

judge, the Honorable Ramy I. Djerassi, who presided at his trial. Then, the 

“parties appeared before [Judge Djerassi] for the first time on January 19, 

2011, [which was the trial listing set by Judge Robinson] for a second 

scheduling conference because [Judge Djerassi] was in the middle of a 

different trial at the time. At the scheduling conference, the case was again 

listed for the earliest possible trial date, which was October 13, 2011.” Id. 

Appellant also does not challenge this finding by the trial court. Thus, the 

delay between January 19, 2011, and October 13, 2011 is excusable under 

the above-cited case authority. 

We observe that the trial court does not mention that on January 19, 

2011, it listed the case for trial on June 16, 2011, as Appellant indicates on 

page twenty-three of his brief. The Commonwealth characterizes the June 

16, 2011 event as a pretrial conference, the trial court does not mention 

June 16, 2011 as a trial listing, and Appellant failed to obtain a transcription 

of the Rule 600 proceeding. Thus, there is no record basis upon which to 

find that Appellant’s second trial listing was June 16, 2011. His second trial 

listing was October 13, 2011, the first available on Judge Djerassi’s calendar 

and trial commenced that day. 
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During the trial court proceeding, Appellant maintained that the period 

of delay caused by the rezoning should be attributable to the Commonwealth 

since the reorganization was initiated by the Philadelphia District Attorney’s 

Office. Id. The trial court rejected that position because the rezoning of the 

court “was implemented for efficiency purposes, and was just one facet of 

the Pennsylvania Supreme Court's 2010 Reform Initiative.” Id. The trial 

court thus characterized the delay occasioned by the rezoning as beyond the 

control of the Commonwealth and excusable. On appeal, Appellant 

challenges this ruling. He avers that “the trial court erred in ruling that the 

delay was partially caused by the rezoning initiative, which was deemed 

excusable delay. The Philadelphia District Attorney's Office was actively 

involved with this initiative, and the prosecutor in this case should have been 

aware of the potential Rule 600 issues that would result from it.” Appellant’s 

brief at 23-24. 

We examined this issue in Armstrong, supra, where we ruled that, 

when a case is reassigned to a different judge due to the reorganization of 

the Philadelphia criminal court system by geographic zone and when the 

second judge scheduled trial for the earliest possible date on its calendar, all 

of that delay is excusable judicial delay. Hence, we must reject Appellant’s 

position that the delay between his first trial listing and his second trial 

listing is not excusable. We do not find that the trial court abused its 
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discretion in denying Appellant’s Rule 600 motion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015