J-S33023-18

                                   2019 PA Super 19

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRYL PRICE                               :
                                               :
                       Appellant               :   No. 599 EDA 2016

           Appeal from the Judgment of Sentence December 30, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009035-2014


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY McLAUGHLIN, J.:                            FILED JANUARY 28, 2019

        Darryl Price appeals from the judgment of sentence imposed following

his convictions for possession of a firearm by a prohibited person, firearms

not to be carried without a license, and possession of a firearm in the City of

Philadelphia.1 Price argues that the trial court erred in denying his pre-trial

Motion to Suppress and in granting the Commonwealth’s pre-trial Motion in

Limine. We affirm.

        Price was convicted of the above-listed offenses following a bench trial

in 2015. Prior to trial, Price filed a Motion to Suppress Physical Evidence,

claiming that he had been seized and searched without probable cause or

reasonable suspicion. The trial court held a hearing on January 15, 2015, at



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*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
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which the Commonwealth presented the testimony of Philadelphia Police

Officer Kevin Klein.

       Officer Klein testified that on the night of July 23, 2014,2 he was working

in an unmarked patrol vehicle with his partner, Officer Christopher Ficchi,

when they received a radio broadcast to respond to the 5100 block of Willows

Avenue. See N.T., 1/15/15, at 15-16. According to Officer Klein, who had

been a Philadelphia Police Officer for seven years at the time of the hearing,

violent crime is prevalent in that area. Id. at 13, 28-29. The radio broadcast

reported that a black male, wearing a white T-shirt and gray shorts, was

driving a silver Lexus with a license plate reading “GWL8569,” and was

carrying a firearm. Id. at 15-16, 29. Officer Klein indicated that the radio

broadcast was the result of a 911 call. Id. at 30.

       Officer Klein testified that he and Officer Ficchi arrived at the intersection

of 51st Street and Willows Avenue within a minute of receiving the radio

broadcast and saw a silver Lexus, facing westbound, stopped at a stop sign.

Id. at 17-18. The Lexus proceeded through the intersection and past the

unmarked police vehicle, which was stopped at the same intersection, facing

eastbound. Id. at 18. As the Lexus passed the officers’ car, Officer Klein

observed that the driver was a black male, later identified as Price, who was

wearing a white T-shirt. Id. Officer Klein also saw that the car had a license
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2 According to the Notes of Testimony of the suppression hearing, Officer Klein
testified that the incident occurred on July 23, 2013. However, all other
documentation in the record, including the transcript of Officer Klein’s trial
testimony, indicates that Price was arrested on July 23, 2014.

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plate reading “GWL8568,” which Officer Klein noted differed by only one digit

from the number provided by the radio broadcast. Id. The officers turned their

vehicle around and followed the Lexus until it pulled into a parking spot. Id.

at 18-19, 27. The officers stopped their vehicle and activated their lights. Id.

at 19, 27.3

       Officer Klein exited the police car and approached the passenger side of

the Lexus. Id. at 19. The window was down, and Officer Klein could see that

Price was wearing gray shorts in addition to wearing a white T-shirt. Id. Price

had his hands on the steering wheel, and did not respond when Officer Klein

asked if he was carrying a firearm. Id. Officer Klein walked to the driver’s side

of the Lexus, opened the door, and asked Price to step out. Id. at 20. Price

stood up, and as he turned, Officer Klein could see that he had a large bulge

in the stomach area of his waistband. Id. Officer Klein testified that in his

experience, most individuals carry firearms in the waistband area. Id. at 14-

15. Officer Klein told his partner that he observed the bulge, and they both

grabbed Price’s arms. Id. at 20. Officer Klein felt the bulge, and found that it

felt like a hard metal object. Id. The officers handcuffed Price and removed

from his waistband a Kel-Tec 9-millimeter gun. Id.

____________________________________________


3 Officer Klein made a statement to police detectives approximately an hour
after Price’s arrest, in which he stated that after he and Officer Ficchi turned
right on Malcolm Street, following the Lexus, they “activated the lights and
[Price] pulled over and parked.” Id. at 33-34. This discrepancy has no bearing
on our analysis, as the parties agree that Price was effectively stopped once
the police activated their lights, regardless of whether this occurred before or
after Price pulled the Lexus into a parking spot.

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        As Officers Klein and Ficchi were arresting Price, they were approached

by a woman named Rachel Clark, who told the officers that she had called 911

to report the gun. Id. at 21-22, 28. She pointed to Price and said, “[T]hat’s

him,” and asked the officers if they had recovered the gun. Id. at 22. Officer

Klein noted that Clark appeared to be standing out of Price’s view, and initially

appeared to be nervous, but was relieved once the officers told her they had

obtained the firearm. Id. Clark informed the officers that she had called 911

because she observed Price “put an item in the trunk of the vehicle” and that

“he loaded bullets into a brown bag and placed that item into the trunk of the

vehicle.” Id. Clark was taken to a police station, where she gave a statement.4

Id. at 28. Despite Clark’s appearance at Price’s arrest, Officer Klein

acknowledged that at the time he stopped Price, he was acting on the basis

that the tip received by 911 was from an anonymous source. Id. at 29-30.

        Officer Klein asked Price if he had any other bullets in the vehicle. Id.

at 23. Price responded that there were bullets in the trunk, and gave Officer

Klein written permission to retrieve them. Id. In the trunk, Officer Klein found

a brown corduroy bag containing 41 live rounds of 9-millimeter ammunition,

six blue latex gloves, and one pair of black leather gloves. Id.

        Relying on Navarette v. California, 572 U.S. 393 (2014), the court

found that the police had reasonable suspicion to stop Price based on the 911


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4   Clark’s statement was not introduced as evidence at the hearing.



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call.5 The court explained that the 911 center in Philadelphia can “track [911

calls] if it’s a landline,” and that “they have caller ID if it’s not a landline.”

N.T., 1/15/15, at 54. The court also noted that 911 callers have their voices

recorded, and the police may be able to establish a 911 caller’s identity

through tracing and tracking systems, which minimize the possibility that a

caller would be dishonest. Id. The court therefore determined that the 911

call was sufficiently reliable to support reasonable suspicion to justify stopping

Price’s car, and denied Price’s Motion to Suppress.

       Immediately       preceding      trial   on   September   18,   2015,   the

Commonwealth made an oral Motion in Limine to preclude testimony that

Rachel Clark, who had called 911, and her nephew, Kevin White, burglarized

Price’s home several weeks after his arrest.6 Price’s attorney argued that

testimony regarding the burglaries would corroborate Price’s defense at trial—

that Clark had framed him for the firearms charges. Price intended to testify

that on the day of his arrest, he had been in a verbal dispute with Clark, and

that Clark and White had been in possession of Price’s car with an opportunity

to plant the gun and ammunition there. Price also intended to testify that the


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5While the trial court did not issue a Rule 1925(a) opinion explaining its ruling
on Price’s Motion to Suppress, the court explained its reasoning on the record
pursuant to Pa.R.Crim.P. 581(I).

6 Although the transcript of the hearing on the Motion in Limine does not make
clear who Price intended to call as a witness to testify regarding the burglaries,
the transcript from a mistrial in this case in June 2015 indicates that Price’s
sister was the intended witness. See N.T., 6/12/15, at 5.

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police had recovered the gun from the door of his vehicle, where Clark and

White had hidden it.

      The trial court granted the Motion and precluded the testimony

regarding the burglaries. In a Pa.R.A.P. 1925(a) opinion, the court explained

that because “[t]he burglaries occurred approximately two and three weeks

after the gun arrest,” they did “nothing to show that [Price] possessed a gun

or did not possess a gun at the time he was arrested,” and the proposed

testimony was therefore irrelevant to Price’s guilt. Trial Court Opinion, filed

January 19, 2018, at 3 (unpaginated)

      Price proceeded to a non-jury trial. The Commonwealth presented the

testimony of Officers Klein and Ficchi, who testified consistently with Officer

Klein’s suppression testimony. Price testified that Clark had been his girlfriend

at the time of his arrest, and the two had had an argument at Clark’s house

that day. He also said that following the argument, Clark borrowed Price’s car

to go to a store, and when she returned, she asked Price to buy watermelon.

Price testified that upon his return to Clark’s house, he was arrested, and did

not know about the presence of the gun in the door of his car until it was

found by the police. See N.T., 9/18/15, at 45-51.

      The court found Price guilty of the above offenses and thereafter

sentenced him to a minimum of five to ten years’ incarceration followed by

five years’ probation. Price filed a post-sentence motion, which was denied on

January 25, 2016.




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       Price filed a timely notice of appeal on February 17, 2016,7 and raises

the following issues:

       I.     Did the lower court err in denying [Price]’s [M]otion to
              [S]uppress since the stop leading to his arrest was not
              supported by reasonable suspicion or probable cause since
              the stop was based on a description in an anonymous phone
              call that lacked the sufficient indicia of reliability required by
              [Commonwealth] v. Jackson, 698 A.2d 571 ([Pa.] 1997)
              and its progeny?



____________________________________________


7  Price’s appeal has been fraught with delay. On July 26, 2016, the trial court
issued a Rule 1925(a) opinion deeming all issues waived for appeal due to
Price’s failure to file a timely Rule 1925(b) Statement of Matters Complained
of on Appeal, which the court had ordered due within 21 days of Price’s receipt
of the transcripts of the court proceedings. See Pa.R.A.P. 1925. That same
day (July 26, 2016), the transcripts were filed with the trial court, and Price
filed a Rule 1925(b) statement. On November 22, 2016, this Court issued a
per curiam order remanding the case for 60 days in order for the trial court to
file a supplemental Rule 1925(a) opinion responsive to Price’s issues.

Over a year later, on November 28, 2017, the trial judge who had presided
over Price’s trial and sentencing, but who had not decided either of the pre-
trial issues raised on appeal, issued two documents requesting that the two
judges who had decided the pre-trial motions file Rule 1925(a) opinions
responsive to Price’s appellate issues. Fulfilling that request, the trial judge
who had granted the Commonwealth’s Motion in Limine filed a Rule 1925(a)
opinion on the trial court docket on January 19, 2018. On March 28, 2018,
this Court issued another per curiam order directing the trial court to file a
supplemental Rule 1925(a) opinion within 30 days. On April 3, 2018, the trial
judge who had tried and sentenced Price issued a Rule 1925(a) opinion that
did not address the issues and instead stated that both of the issues on appeal
had been decided by other judges. The certified record was thereafter
transmitted to this Court. As no transcripts were included with the certified
record, we issued yet another per curiam order on June 12, 2018, requesting
that the trial court supplement the record with the appropriate transcripts
within 15 days. On July 3, 2018, the trial court supplemented the certified
record with the necessary transcripts.



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       II.    Did the lower court err in granting the Commonwealth’s
              [M]otion in [L]imine to exclude evidence relating to the
              subsequent burglary of [Price]’s residence by Rachel Clark?

Price’s Br. at 3 (suggested answers omitted).8

                               I. Motion to Suppress

       Price first argues that the trial court erred in denying his Motion to

Suppress because the anonymous call received by the police was insufficient

to support reasonable suspicion to justify stopping Price’s vehicle.

       Our standard of review on appeal of the denial of a motion to suppress

is “to determine whether the record supports the suppression court's factual

findings and the legitimacy of the inferences and legal conclusions drawn from

those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super.

2011) (citation omitted). If the record supports the factual findings of the

suppression court, we reverse “only if there is an error in the legal conclusions

drawn from those factual findings.” Id. We view the record in the light most

favorable to the Commonwealth as the prevailing party. See Commonwealth

v. Mathis, 173 A.3d 699, 706 (Pa. 2017).

       The parties agree that when Officers Klein and Ficchi activated the lights

on the police vehicle, Price was subjected to an investigative detention, which
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8  Price initially argues that his issues should not be waived due to his failure
to file a timely Rule 1925(b) statement. See Price’s Br. at 10. Given that Price
filed a Rule 1925(b) statement within 21 days of the date the notes of
testimony were filed upon the trial court docket, as he was ordered to do by
the trial court; we previously remanded the case in order for the trial court to
respond to the issues in Price’s 1925(b); and the Commonwealth agrees that
Price’s issues are not waived, see Commonwealth’s Br. at 7 n.3, we do not
find Price’s issues to be waived.

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needed to be supported by reasonable suspicion. See Commonwealth v.

Fuller, 940 A.2d 476, 479 (Pa.Super. 2007). Reasonable suspicion exists

where an officer’s observations and reasonable inferences, in light of his

experience, lead to the reasonable conclusion “that criminal activity was afoot

and    that   the   person     he    stopped     was   involved   in   that   activity.”

Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa.Super. 2012). “The

totality of the circumstances standard remains the governing standard for the

reasonable suspicion analysis and demands an objective consideration of all

factors attending a tip provided by a police informant—anonymous or not.”

Commonwealth v. Brown, 996 A.2d 473, 479 (Pa. 2010).

       In denying the Motion to Suppress, the trial court relied upon Navarette

v. California, 134 S. Ct. 1683 (2014).9 In Navarette, the California Highway

Patrol broadcast a tip from a 911 caller that a certain vehicle “ran the reporting

party off the roadway.” Id. at 1686-87. The broadcast included a description

of the vehicle, including the license plate number and the highway mile marker

of its last known location. Id. A California Highway Patrol officer who

responded to the broadcast located the vehicle eighteen minutes after the

incident, 19 miles down the same highway, and pulled it over to investigate.

Id. at 1687.



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9 Price makes no argument that this Court should not follow Navarette
because Pennsylvania’s Constitution provides Price greater protection than the
federal Constitution in this scenario.


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      The Supreme Court held that the stop was lawful. Id. at 1692. The Court

reasoned that the 911 call, though anonymous, “bore adequate indicia of

reliability for the officer to credit the caller’s account.” Id. at 1688. The Court

explained that the caller’s use of the 911 system – which can record the call

and “has some features that allow for identifying and tracing callers,” “thus

provid[ing] some safeguards against making false reports with immunity” –

added to the believability of the tip. Id. at 1689-90. The Court found the tip’s

reliability was further buttressed by the fact that the tipster implicitly claimed

eyewitness knowledge of the dangerous driving. The Court pointed out that

the type of tip received in that case – that another car just ran the caller off

the road – was the type inherently made “contemporaneous with the

observation of criminal activity or made under the stress of excitement caused

by a startling event.” Id. at 1689. Although the dissent in Navarette asserted

that there was nothing in that case to suggest that the caller was aware of

“the ease of identifying 911 callers,” the Navarette majority nonetheless

considered the caller’s use of the 911 system to be one factor justifying the

officer’s reliance on the information reported in the call. Id. at 1694 (Scalia,

J., dissenting).

      Here, Officer Klein testified that he received a radio broadcast relaying

that an anonymous source had reported to 911 that a black male wearing a

white T-shirt and grey shorts and driving a silver Lexus with a license plate

reading “GWL8569,” was located on the 5100 block of Willows Avenue and in

possession of a firearm. Officer Klein observed Price, whose sex, race, T-shirt

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color, and vehicle, aside from one digit on the license plate, matched the tip,

in the location given by the tip, within a minute. The officer then stopped and

questioned Price.

      We conclude that the totality of the circumstances supported the stop.

First, the officers were responding to a call received by Philadelphia’s 911

emergency call center. As the trial court acknowledged, this system can record

each call and thus enables the police to trace its source and identify the caller,

thus increasing the reliability of any tip received via 911. Second, the tip in

this case, which included the location of Price’s moving vehicle, implied that

the   tipster’s   knowledge   was   based     on   contemporaneous    eyewitness

observations of Price’s actions. Finally, not only did nearly every detail of the

description the caller gave of the car and perpetrator match Price – including

his vehicle, license plate number (save one digit), and clothing – but police

also found Price’s moving vehicle within one minute of the receiving the

broadcast, in the very block that the tipster had identified.

      This combination of circumstances, viewed in the light most favorable

to the Commonwealth, supported the officers’ conclusion that the tip was

sufficiently reliable. See Navarette, 134 S. Ct. at 1689-90. We therefore

conclude that the officers had reasonable suspicion to stop Price’s car and

investigate further. We affirm the denial of Price’s Motion to Suppress.

                              II. Motion in Limine

      In his second issue, Price argues that the court erred by prohibiting

evidence that Rachel Clark burglarized his residence after his arrest. Price

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contends that this evidence would have corroborated his defense at trial – that

the gun was recovered from the door of his car, where Rachel Clark had hidden

it – and that preclusion of this evidence deprived him of a fair trial. Price cites

Commonwealth v. Davis, 652 A.2d 885 (Pa.Super. 1995), in support.

       We review a trial court’s grant of a motion in limine for an abuse of

discretion, and will not disturb a ruling on the admission of evidence “unless

that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.” Commonwealth

v. Akrie, 159 A.3d 982, 986-87 (Pa.Super. 2017).

       The trial court barred the evidence of the burglaries on the basis that it

was not relevant. See Pa.R.E. 402.10 Rule 401 of the Pennsylvania Rules of

Evidence provides that evidence is only relevant when “(a) it has any tendency

to make a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.” Pa.R.E. 401. As

the official comment further clarifies, relevancy “is to be determined by the

court in the light of reason, experience, scientific principles and the other

testimony offered in the case.” Pa.R.E. 401, Comment. Rule 404(b) specifies

that evidence of an act is inadmissible to prove a person’s general character,

but is admissible to prove other things, such as the person’s motive or intent.

See Pa.R.E. 404(b)(2). We have previously held that Rule 404(b)(2) applies



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10“All relevant evidence is admissible, except as otherwise provided by law.
Evidence that is not relevant is not admissible.” Pa.R.E. 402.

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to evidence offered by a defendant implicating the guilt of a third party. See

Commonwealth v. Thompson, 779 A.2d 1195, 1202 (Pa.Super. 2001).

      We conclude that in light of the other testimony offered in the present

case, testimony that Clark burglarized Price’s home would have offered little

to increase the probability that Price was unaware of the handgun in his car

on the date of his arrest. The burglaries occurred several weeks after Price’s

arrest, and Price has not offered any explanation regarding how the burglaries

were connected to the events surrounding the recovery of the firearm, aside

from as general evidence of Clark’s character. The testimony was therefore

both irrelevant and inadmissible character evidence under Rule 404(b).

Moreover, Price amply testified regarding the facts that were actually relevant

to his narrative: his relationship with Clark, her opportunity to plant a gun in

his car, and the discord in their relationship that day that may have motivated

her to do so.

      Davis affords Price no relief. In Davis, we held that trial counsel could

be found ineffective for failing to cross-examine the complaining witness to

uncover a potential motive to fabricate. 652 A.2d at 890. Davis alleged that

the complaining witness had criminal charges pending against her at the time

of his trial. Id. at 887. Although the charges stemmed from unrelated

incidents that occurred after the crime for which Davis stood trial, we

concluded that, if the charges in fact existed, Davis’s trial attorney should

have cross-examined the witness regarding whether she would receive lenient

treatment from the Commonwealth as a result of her testimony against Davis.

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Id. at 889. We relied on the precept that a defendant’s ability to cross-

examine the complaining witness should not be impeded, particularly where

the complaining witness’s testimony is not corroborated by any other

evidence, which was the circumstance at Davis’s trial. Id. at 888-89.

      Here, in contrast, Clark did not testify against Price. Because she was

not a witness, there was no potentially biased testimony that Price needed to

confront. In addition, the Commonwealth presented the testimony of two

police officers, who testified that they recovered the firearm from Price’s

waistband. This case is therefore distinguishable from Davis, where the entire

case hinged on the unrebutted testimony of a complaining witness who was

not sufficiently cross-examined.

      We therefore fail to see in what manner the trial court abused its

discretion in granting the Commonwealth’s Motion in Limine. As neither of

Price’s issues merit relief, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/19




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