J-S62028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ORONDA A. RAHATT,

                        Appellant                  No. 2990 EDA 2013


        Appeal from the Judgment of Sentence of October 15, 2013
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0001772-2012

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 27, 2014

      Appellant, Oronda A. Rahatt, appeals from the judgment of sentence

entered on October 15, 2013, as made final by the denial of his post-

sentence motion on February 12, 2014. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On April 18, 2012, in the early evening hours, Officer Kirt Guyer
      was on routine uniform patrol for the City of Coatesville Police
      Department. Officer Guyer along with Officer Chris McCarthy
      were dispatched to the Kool Bar located at 336 E. Lincoln
      Highway, Coatesville, Chester County, Pennsylvania for a report
      of a black man with a gun following a 911 call from an
      anonymous female. The Coatesville Police Department
      characterizes the Kool Bar as a nuisance bar because of how
      often they are dispatched to the establishment. Specifically,
      over the past several years officer[s] responded to this location
      for reports of various criminal activities including[,] but not
      limited to[,] fights, drug dealing[,] and aggravated assaults.
      Upon arriving at the Kool Bar, Officer McCarthy was approached
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     by [James Hilton (“Hilton”)] who stated that a black man
     wearing a white baseball hat approached him in the bar and
     asked if he had a problem. Officer McCarthy knew [Hilton] from
     prior encounters. [Hilton] provided a better description of the
     suspect while speaking with the officer[s] outside. Specifically,
     [Hilton] stated that the suspect was also wearing a pink shirt
     during this conversation with the officer[s]. Moreover, [Hilton]
     stated that a female friend informed him that she observed the
     same black male, wearing a pink shirt and white baseball hat,
     pull a gun on a female bar patron. The officers instructed
     [Hilton] to return inside the bar and ask his female friend to
     come outside and talk with them.

     As [Hilton] was returning inside the bar and while the officers
     were still in the parking lot, Officer Guyer observed [Appellant]
     walk out of the bar with an intoxicated stagger, and wearing a
     pink shirt and a white baseball hat. As the officers approached
     [Appellant], their suspicion that [Appellant] maybe [sic]
     intoxicated was further corroborated by the fact that they
     observed [Appellant] with bloodshot eyes and with an odor of
     alcohol emanating from his person.         At this point, officers
     stopped [Appellant] and subjected him to a protective pat-down
     search. Prior to frisking [Appellant], Officer Guyer asked him if
     he had any weapons on him to which [Appellant] replied, “No.”
     However, while frisking [Appellant], Officer McCarthy alerted
     Officer Guyer that he felt a bulge in [Appellant’s] right front
     pants pocket. Specifically, Officer McCarthy felt a hard, L-
     shaped object in that pocket and based on his training and
     experience he believed it to be a firearm.         Consequently,
     [Appellant] was placed in handcuffs as a safety precaution and
     Officer Guyer retrieved a black, Makarov []9mm, semi-automatic
     handgun from [Appellant’s] right front pants pocket.

     Further inspection of the firearm revealed that it had the serial
     number filed off the frame.        Moreover, the gun magazine
     contained five []9mm bullets and a sixth bullet was present in
     the chamber of the weapon. A check of [Appellant’s] criminal
     history report revealed that [Appellant] was a previously
     convicted felon and could not lawfully possess a firearm.
     Furthermore, [Appellant] did not possess a valid license to
     lawfully carry a firearm on the night in question.




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Trial Court Opinion, 6/10/14, at 2-3 (internal citations and certain internal

quotation marks omitted).

        The procedural history of this case is as follows. On April 18, 2012, a

criminal complaint was filed charging Appellant with possession of a firearm

by a prohibited person,1 disorderly conduct,2 carrying a loaded weapon other

than a firearm,3 altering a serial number of a firearm,4 and criminal

trespass.5    On May 24, 2012, a criminal information was filed charging

Appellant with possession of a firearm by a prohibited person, disorderly

conduct, and carrying a firearm without a license.6 On February 21, 2013,

Appellant filed a motion to suppress the firearm seized from his person. On

March 26, 2013, a suppression hearing was held at the conclusion of which

the trial court denied the motion to suppress.

        On June 7, 2013, defense counsel was permitted to withdraw and

Appellant was permitted to proceed pro se.7 On June 10 and June 28, 2013,

Appellant filed pro se motions to suppress.      A second suppression hearing

1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 5503(a)(4).
3
    18 Pa.C.S.A. § 6106.1(a).
4
    18 Pa.C.S.A. § 6117(a).
5
    18 Pa.C.S.A. § 3503(b)(1)(i).
6
    18 Pa.C.S.A. § 6106(a)(1).
7
  Appellant’s previously appointed attorney remained attached to this matter
in the capacity of stand-by counsel.


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was held on July 8, 2013 at the conclusion of which the trial court denied

Appellant’s motions to suppress. Trial commenced on August 19, 2013. On

August 21, 2013, Appellant was found guilty of possession of a firearm by a

prohibited person and carrying a firearm without a license. On October 15,

2013, Appellant was sentenced to an aggregate term of five to ten years’

imprisonment.

      On October 24, 2013, Appellant filed a pro se post-sentence motion

and notice of appeal.8     On December 2, 2013, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal

(“concise statement”).     See Pa.R.A.P. 1925(b).       That same day, at

Appellant’s request, the trial court appointed counsel for this direct appeal.

On February 12, 2014, Appellant’s post-sentence motion was denied via

operation of law.9   See Pa.R.Crim.P. 720(B)(3)(b).      On May 16, 2014,

Appellant filed his concise statement, which included his sole issue on

appeal. On June 9, 2014, the trial court issued its Rule 1925(a) opinion.

      Appellant presents one issue for our review:


8
   This Court could have quashed Appellant’s notice of appeal as interlocutory
in nature. See Commonwealth v. Rigg, 84 A.3d 1080, 1082 n.1 (Pa.
Super. 2014) (citation omitted). Four months after the notice of appeal was
filed, however, Appellant’s judgment of sentence became final when his
post-sentence motion was denied by operation of law.             Pursuant to
Pennsylvania Rule of Appellate Procedure 905(a)(5), the notice of appeal
was thereafter deemed filed as of February 12, 2014.
9
  We note that the clerk of courts failed to enter an order denying
Appellant’s post-sentence motion by operation of law as required by
Pennsylvania Rule of Criminal Procedure 720(B)(3)(c).


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      Whether the trial court erred in denying Appellant’s motion to
      suppress physical evidence?

Appellant’s Brief at 5.

      “Our standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining whether the [trial] court’s

factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.” Commonwealth v. Stem,

96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted).        “[O]ur scope of

review is limited to the factual findings and legal conclusions of the

suppression court.”       In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation

omitted).    “We may consider only the Commonwealth’s evidence and so

much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d

102, 106 (Pa. 2014) (citation omitted).

      We note the procedural posture of this case and how that impacts our

scope of review in this case. The relevant suppression hearing in this case

occurred in March 2013 and the trial occurred in August 2013. In October

2013, our Supreme Court decided L.J. In L.J., our Supreme Court held that

this Court’s scope of review when reviewing a suppression court’s denial of a

suppression motion is limited to the evidence presented at the suppression

hearing.    L.J., 79 A.3d at 1085.     However, our Supreme Court chose to

apply this rule prospectively instead of retroactively. Id. at 1088-1089. As

the suppression hearing and trial in this case occurred prior to L.J., we may


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review both the evidence presented at trial and the evidence presented at

the suppression hearing.      See id. at 1089 (“All litigation commenced

Commonwealth-wide after the filing of [L.J.], will be considered in accord

with [that] opinion.”).

      Appellant argues that the police officers detained him, and patted him

down for weapons, without reasonable suspicion.       Thus, he contends that

the search violated both the state and federal constitutions.    “As we have

explained, the Fourth Amendment to the United States Constitution and

Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.         To safeguard these rights, courts

require police to articulate the basis for their interaction with citizens in

three increasingly intrusive situations.”   Commonwealth v. Clemens, 66

A.3d 373, 378 (Pa. Super. 2013) (internal alterations, quotation marks, and

citation omitted).

      We have described three types of police/citizen interactions, and the

necessary justification for each, as follows:

      The first of these is a mere encounter (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or respond.
      The second, an investigative detention, must be supported by
      reasonable suspicion; it subjects a suspect to a stop and period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of arrest. Finally, an arrest
      or custodial detention must be supported by probable cause.

Commonwealth v. Williams, 73 A.3d 609, 613–614 (Pa. Super. 2013),

appeal denied, 87 A.3d 320 (Pa. 2014) (internal alteration, quotation marks,


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and citation omitted).    On a motion to suppress, the burden is on the

Commonwealth to prove, by a preponderance of the evidence, that the

evidence seized from Appellant was legally obtained. See Commonwealth

v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d

118 (Pa. 2013) (citation omitted).

      In this case:

      [T]he frisk at issue constituted an investigative detention in the
      nature of a protective weapons search which is governed by
      Terry [v. Ohio, 392 U.S. 1 (1968)] . . . and requires that police
      have reasonable suspicion either that criminal activity was afoot
      or that appellant was armed and dangerous to them:

      It is well-established that a police officer may conduct a brief
      investigatory stop of an individual if the officer observes unusual
      conduct which leads him to reasonably conclude that criminal
      activity may be afoot. Moreover, if the officer has a reasonable
      suspicion, based on specific and articulable facts, that the
      detained individual may be armed and dangerous, the officer
      may then conduct a frisk of the individual’s outer garments for
      weapons. Since the sole justification for a Terry search is the
      protection of the officer or others nearby, such a protective
      search must be strictly limited to that which is necessary for the
      discovery of weapons which might be used to harm the officer or
      others nearby. Thus, the purpose of this limited search is not to
      discover evidence, but to allow the officer to pursue his
      investigation without fear of violence.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted).

      As we have explained:

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. . . . In assessing
      the totality of the circumstances, courts must also afford due


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      weight to the specific, reasonable inferences drawn from the
      facts in light of the officer’s experience and acknowledge that
      innocent facts, when considered collectively, may permit the
      investigative detention.

      The determination of whether an officer had reasonable
      suspicion . . . is an objective one, which must be considered in
      light of the totality of the circumstances.

Clemens, 66 A.3d at 379 (ellipsis and citation omitted).

      In this case, the officers had reasonable suspicion that criminal activity

was afoot and that Appellant was armed and dangerous.           The incident in

question occurred at a nuisance bar. An anonymous caller to 911 said that

an African-American male at the location was armed.         Hilton informed the

officers that an individual matching Appellant’s description had threatened a

female bar patron with a firearm. Hilton’s description of Appellant was not

general.   Instead, it was a very specific description – an African-American

male wearing a white baseball cap and a pink shirt.

      Appellant’s argument that the anonymous tip was insufficient to

provide the officers with reasonable suspicion ignores the fact that the

information from the anonymous tip was corroborated by Hilton.              See

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citation

omitted)   (“An   anonymous     tip,   corroborated   by   independent    police

investigation, may exhibit sufficient indicia of reliability to supply reasonable

suspicion for an investigatory stop.”). Furthermore, Hilton was known to the

police officers who arrived on scene. See Commonwealth v. Washington,

63 A.3d 797, 803 (Pa. Super. 2013) (“a tip from an informer known to the


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police may carry enough indicia or reliability for the police to conduct an

investigatory stop”). Although further investigation and corroboration may

have been necessary to obtain probable cause to arrest Appellant, the

officers only needed reasonable suspicion to conduct a Terry frisk.         We

conclude that the officers in this case had the requisite reasonable suspicion.

      Although the evidence was sufficient to give the officer’s reasonable

suspicion that Appellant possessed a firearm, and therefore the officers could

lawfully conduct a Terry frisk, Appellant contends that the evidence used to

establish that the police had reasonable suspicion should not have been

admitted as it violated his right to confront witnesses guaranteed by the

Sixth Amendment of the United States Constitution. The Sixth Amendment

provides that, “In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him[.]” U.S. Const. amend.

VI.   The Sixth Amendment has been applied to the states through

incorporation into the Fourteenth Amendment. Pointer v. Texas, 380 U.S.

400, 403 (1965).

      We conclude that Appellant’s confrontation rights were not violated.

In order for the Confrontation Clause to be applicable, a defendant must be

denied the right to confront a witness.      Witnesses are “those who bear

testimony.”   Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011) (internal

quotation marks and citation omitted). Testimony is a “solemn declaration

or affirmation made for the purpose of establishing or proving some fact.”



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Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (internal

quotation marks and citation omitted).

        Appellant relies upon Crawford v. Washington, 541 U.S. 36 (2004),

for the majority of his Confrontation Clause argument.       The facts in the

instant case; however, are distinguishable from the facts in Crawford. In

Crawford, the defendant stabbed a man who had attempted to rape his

wife.    Id. at 38.    At trial, the state played a tape of defendant’s wife

describing the stabbing.     Id.   The Supreme Court of the United States

emphasized that the Confrontation Clause does not bar admission of

statements offered for a purpose other than to prove the truth of the matter

asserted. Id. at 59 n.9 (citation omitted). It concluded; however, that in

Crawford the wife’s statements were offered for the truth of the matter

asserted and, therefore, concluded that the defendant’s Confrontation Clause

rights had been violated. See id. at 68.

        In this case, the statements of Hilton, the female bar patron, and the

female that called 911 included within Officer Guyer’s testimony were not

solemn declarations made for the purpose of establishing or proving

Appellant’s guilt.    Instead, they were merely being offered to show why

Officer Guyer believed that criminal activity may be afoot and Appellant may

be armed, and therefore conducted a Terry frisk.      In other words, Officer

Guyer’s recitation of what Hilton told him, and what the 911 caller had

relayed to police, was merely used to explain his course of conduct.     It is



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well-settled that such course of conduct testimony does not violate the

Confrontation Clause. Commonwealth v. Carson, 913 A.2d 220, 258 (Pa.

2006); Williams v. Chrans, 894 F.2d 928, 932 (7th Cir. 1990); see

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006)

(citations omitted) (course of conduct testimony is not hearsay and the

Confrontation Clause only applies to hearsay); see also Commonwealth v.

Trinidad, 96 A.3d 1031, 1037 (Pa. Super. 2014) (citations omitted) (“It is

well established that certain out-of-court statements offered to explain the

course of police conduct are admissible because they are offered not for the

truth of the matters asserted but rather to show the information upon which

police acted.”); Illinois v. Sangster, 8 N.E.3d 1116, 1132 (Ill. App. 2014)

(double hearsay is admissible to show course of conduct). Thus, Appellant’s

rights under the Confrontation Clause were not violated.      Accordingly, the

trial court properly denied Appellant’s motion to suppress.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2014




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