J-S18005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    WILLIE ROGER HILL

                             Appellant                No. 851 WDA 2017


       Appeal from the Judgment of Sentence imposed February 21, 2017
                 In the Court of Common Pleas of Beaver County
                Criminal Division at No: CP-04-CR-0000300-2016


BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED JULY 24, 2018

        Appellant, Willie Roger Hill, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Beaver County on February 21,

2017 following his conviction of persons not to possess a firearm, 18 Pa.C.S.A.

§ 6105(a)(1). Appellant was tried on that charge after his motion to suppress

the firearm was denied and after other charges stemming from his arrest were

severed for trial.1 Upon review, we affirm.

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1Appellant also has appealed from a judgment of sentence imposed on April
12, 2017 following his conviction of firearm not to be carried without a license
and possession of a controlled substance. 18 Pa.C.S.A. § 6106(a)(1) and
35 P.S. § 780-113(a)(16). See No. 706 WDA 2017. Both judgments of
sentence arose from incidents that occurred on January 21, 2016. The cases
were severed for trial to avoid prejudice to Appellant because the charge of
persons not to possess firearms required proof of a prior drug conviction
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        In his opinion issued following denial of Appellant’s suppression motion,

the Honorable Dale Fouse explained:

        By way of criminal information, [Appellant] was charged with
        receiving stolen property, as a person not to possess a firearm,
        carrying a firearm without a license, making terroristic threats,
        simple assault and possession of a controlled substance after
        police located a firearm in [Appellant’s] waistband during a
        Terry[2] stop and frisk. At the suppression hearing, Lieutenant
        Brian Jameson of the Ambridge Borough Police Department was
        the sole witness on behalf of the Commonwealth, and testified to
        the following:

              On January 21, 2016 around 10:30 a.m., Lieutenant
        Jameson received a call from the Ambridge Police Station from the
        Ambridge Towers apartment complex housing manager, Babette
        Robertson, concerning a loud disturbance in apartment 910.
        Within 10 to 20 minutes, Jameson arrived at apartment 910,
        belonging to an individual named Marc Ellis. After hearing an
        argument muffled by loud music, he knocked on the door and
        announced his presence. Mr. Ellis and another person who lived
        in the complex, a Timothy Hollins, came out into the hallway to
        speak with Lieutenant Jameson. At this time, Mr. Ellis informed
        Jameson that an individual named Willie Roger Hill had come to
        his apartment brandishing a firearm held at his side in a
        threatening manner. Mr. Ellis appeared to be fairly drunk and Mr.
        Hollins appeared to be “extremely intoxicated.” Mr. Hollins was
        arguing and “going after” the building manager, which prompted
        Jameson to call for backup—Sergeant Kleber—who showed up 10
        minutes later. Jameson then escorted a drunk Mr. Hollins from
        the 9th floor to his apartment on the 7th floor, taking the elevator.
        While he was taking the stairs to get back to the 9th floor, he ran
        into an individual named Anitra Truss, who was present for the
        argument in apartment 910, but stated to Jameson that she
        “didn’t know anything.” Jameson then returned to the 9 th floor
        where he took a more complete statement from Mr. Ellis, again
        confirming that [Appellant] made a threat with a firearm. Shortly
____________________________________________


unrelated to the January 21, 2016 incidents. The instant appeal involves only
the judgment of sentence imposed for persons not to possess firearms.

2   Terry v. Ohio, 392 U.S. 1 (1968).

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     after taking the statement from Mr. Ellis, Lieutenant Jameson and
     the building manager went to the sixth floor to investigate a
     building alarm that turned out to be a malfunctioning [sic] in a
     vacant room. In returning to the 7th floor using the stairwell,
     Lieutenant Jameson saw Sergeant Kleber step out of the elevator
     all while [Appellant], Willie Roger Hill, walked out of Mr. Holmes’
     apartment. At this time, Jameson approached [Appellant] and
     asked him to place his hands against the wall and patted his
     waistband to find a pistol loaded with 12 rounds. Jameson
     recognized [Appellant] as [a] person convicted of an enumerated
     offense under 18 Pa.C.S. § 6105(b). Following the pat-down,
     James arrested [Appellant] and conducted a search incident to
     arrest which revealed a driver’s license as well as a vial of
     suboxone. During the arrest, Jameson asked [Appellant] whether
     he had a permit for the firearm, to which [Appellant] rhetorically
     asked, “what do you think?”

Trial Court Opinion, Suppression, 10/20/16, at 2-3 (references to notes of

testimony, footnotes, and some capitalization omitted).

     The trial court explained that Appellant sought suppression of the

firearm retrieved from his waistband based on his claim that Lieutenant

Jameson did not have the required reasonable suspicion to conduct a Terry

search.   Appellant argued that the initial disturbance to which the officer

responded was not ongoing at the time of the stop. Following a suppression

hearing on October 4, 2016, the trial court denied the motion, finding

Lieutenant Jameson “had the required level of reasonable suspicion to conduct

a Terry search of [Appellant].” Id. at 6.

     On January 10, 2017, Appellant filed a motion to sever Count 2 (persons

not to possess a firearm) from the remainder of the Information. The trial

court granted the motion by order of the same day. Order, 1/10/17, at 1.




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      On January 11, 2017, Appellant proceeded to a jury trial before Judge

Fouse on the sole count of persons not to possess a firearm. At the conclusion

of trial, the jury returned a verdict of guilty. On February 21, 2017, the court

sentenced Appellant to a term of imprisonment of not less than five nor more

than ten years. Appellant filed post-sentence motions that were denied on

May 1, 2017.     He filed a timely notice of appeal on May 31, 2017.         Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      In this appeal, Appellant presents two issues for our consideration:

      I.    Was the evidence insufficient to support the verdict of guilty
            of Person[s] not to Possess a Firearm because the firearm
            was not shown to have readily been made operable by
            means that the [A]ppellant had under his control at the time
            that he actually possessed the firearm and under the same
            conditions that exited when he possessed the firearm?

      II.   Was the arresting officer justified in patting down
            [Appellant] when the officer had no information regarding
            the time frame that [Appellant] may have possessed a
            firearm and when [Appellant] engaged in no suspicious
            conduct at the time that he was apprehended?

Appellant’s Brief at 8.

      Appellant’s first issue involves a challenge to the sufficiency of evidence

to support his conviction of persons not to possess a firearm.                 In

Commonwealth v. Miklos, 159 A.3d 962 (Pa. Super. 2017), we reiterated:

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission thereof

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         by the accused, beyond a reasonable doubt. Nevertheless, the
         Commonwealth need not establish guilt to a mathematical
         certainty. Any doubt about the defendant’s guilt is to be resolved
         by the fact finder unless the evidence is so weak and inconclusive
         that, as a matter of law, no probability of fact can be drawn from
         the combined circumstances.

Id. at 967 (quoting Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa.

Super. 2013) (en banc) (internal citations and quotations omitted)). Further,

“[t]he    Commonwealth        may    sustain   its   burden by    means of wholly

circumstantial evidence, and we must evaluate the entire trial record and

consider     all   evidence   received    against    the   defendant.”   Id. (citing

Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 598 (2007)).

         “To sustain a conviction for the crime of persons not to possess a

firearm, the Commonwealth must prove that ‘[Appellant] possessed a firearm

and that he was convicted of an enumerated offense that prohibits him from

possessing, using, controlling, or transferring a firearm.’”             Id. (citing

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009)).

Because Appellant does not contest that he was convicted of an enumerated

offense that prohibits him from possessing a firearm, we shall focus on the

whether the Commonwealth proved that he “possessed a firearm.”3




____________________________________________


3 The Commonwealth presented evidence of Appellant’s 2010 felony conviction
of possession with intent to deliver, an enumerated offense precluding him
from legally possessing a firearm. See N.T., Trial, 1/11/17, at 164-69.


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       The term “firearm” is defined as any weapon “designed to or may

readily be converted to expel any projectile by the action of an explosive or

the frame or receiver of any such weapon.” 18 Pa.C.S.A. § 6105(i). In the

instant case, the trial court considered Appellant’s contention that the

Commonwealth failed to prove beyond a reasonable doubt that Appellant

“knowingly, intentionally or unlawfully possessed a firearm or that the firearm

was designed for the prohibited purpose.” Rule 1925(a) Opinion, 7/31/17, at

3 (quoting Appellant’s Rule 1925(b) Statement at ¶ 2).4

       The trial court reviewed the testimony of Lieutenant Jameson, including

his statement that he removed the firearm from Appellant’s waistband,

handed it to Sergeant Kleber, and noticed “the hammer was cocked on it, and

it was in a functional state[.]” Id. at 4 (quoting Notes of Testimony (“N.T.”),

Trial, 1/11/17, at 64). Sergeant Kleber proceeded to clear the weapon, de-

cocking the hammer, dropping the magazine, and ejecting the shell casing

from the chamber. Id. In Lieutenant Jameson’s experience, “the gun was in

a state to be fired.” Id.

       The trial court also considered the testimony of Ambridge Police Chief

Mann who testified as to his firearms experience and to test firing the gun



____________________________________________


4 We note that Appellant’s brief does not include a copy of Judge Fouse’s Rule
1925(a) Opinion but rather includes Judge Knapfelc’s Rule 1925(a) Opinion
from the appeal docketed at No. 706 WDA 2017. Fortunately, Judge Fouse’s
Rule 1925(a) Opinion is included in the certified record.


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seized by Lieutenant Jameson. Chief Mann testified that he fired five shots

from the gun, using ammunition from the station rather than the shells

recovered from the gun, and stated that the “gun worked flawlessly, ejected

flawlessly, [and] the safety worked.” Id. at 5 (quoting N.T., Trial, 1/11/17,

at 117). Based on Chief Mann’s testimony, it is clear that the firearm seized

from Appellant was a weapon designed to expel a projectile by the action of

an explosive, bringing it within the definition of a firearm under Section

6105(i).

       Appellant suggests that his gun was not operable.     He contends the

Commonwealth failed “to provide evidence that the firearm was operable in

the condition and with the bullets found on [Appellant]” and, therefore, his

conviction for persons not to possess a firearm cannot stand. Appellant’s Brief

at 14. However, a gun need not be proven to be operable in order to qualify

as a firearm.     See Commonwealth v. Miklos, 159 A.3d at 967 (quoting

Commonwealth v. Thomas, 988 A.2d at 672).5




____________________________________________


5 Appellant relies on Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973),
in support of his contention that a gun must be operable. His reliance is
misplaced. While Layton required proof that a gun was operable, that case
was decided under a provision of the Uniform Firearms Act, 18 P.S. § 4628,
which has been repealed and replaced by Section 6105. “The current statute
applies to any weapon that is designed to fire ammunition containing an
explosive charge[.]” Thomas, 988 A.2d at 671.



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      The trial court concluded that the evidence was sufficient to support a

conviction that Appellant intentionally, knowingly or recklessly possessed a

firearm. Further, it was undisputed that Appellant had been convicted of an

enumerated offense prohibiting him from possessing a firearm. Based on our

review of the record in the light most favorable to the Commonwealth as

verdict winner, we agree with the trial court that the evidence was sufficient

to support Appellant’s conviction of persons not to possess a firearm.

Appellant’s sufficiency challenge fails.

      In his second issue, Appellant asserts Lieutenant Jameson was not

justified in conducting a pat down of Appellant. He claims Jameson lacked

information regarding the timeframe during which Appellant may have

possessed a firearm and argues he was not involved in any suspicious activity

when he was apprehended by Jameson. Although not stated in these terms,

in essence Appellant is raising a challenge to the denial of his motion to

suppress the firearm. As a challenge to the denial of a motion to suppress,

we apply the following standard of review:

      [An appellate court’s] standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, [the appellate court is] bound by [those]
      findings and may reverse only if the court’s legal conclusions are

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      erroneous. Where . . . the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1256 (Pa. Super. 2017) (quoting

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(alterations in original) (additional citations omitted)).

      As the trial court correctly noted, the Federal and Pennsylvania

Constitutions offer protections against unreasonable searches and seizures.

Trial Court Opinion, Suppression, 10/20/16, at 4 (citing U.S. Const. Amend.

IV; Pa. Const. Art I, § 8). Essentially, police must either have a warrant or

proceed under one of the exceptions to the warrant requirement. One such

exception is a Terry stop and frisk that allows an officer to stop an individual

and conduct a pat-down search of outer clothing to search for weapons that

might be used to harm police or others nearby.         Id. at 4-5 (citing Terry,

supra, and Commonwealth v. E.M., 735 A2d 654 (Pa. 1999). A court must

consider the totality of the circumstances to determine whether police had

reasonable suspicion. However, absolute certainty is not required but, rather,

a level of certainty of a reasonably prudent officer. Id. at 5 (citing, inter alia,

Commonwealth v. Gray, 896 A.2d 601, 606 (Pa. Super. 2006)). Further,

“a trial court does not err in finding that an officer had reasonable suspicion

when relying on statements by a third person to believe that an individual is



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armed and dangerous.” Id. (citing United States v. Murray, 821 F.3d 386,

393 (3d Cir. 2016), cert. denied, 137 S.Ct. 244 (2106)).

         The trial court stated:

         Based on a review of the record and applicable case law, we do
         find that Lieutenant had the required level of reasonable suspicion
         to believe [Appellant] was armed and dangerous. We begin our
         analysis by noting that we consider the actions of Lieutenant
         Jameson objectively and with respect to a totality of the
         circumstances. The purpose of the initial investigation brought
         Jameson into a thorny situation with three different potential
         actors, all of whom were experiencing varying levels of
         inebriation. The disturbance was ongoing even after he knocked
         on the door and Mr. Ellis and Mr. Hollins stepped out of the
         apartment. Mr. Hollins continued to be belligerent, argumentative
         and even physical with the apartment manager even after he left
         the apartment. At no time could we say that the situation reached
         a point of calm allowing proceed [sic] to proceed without extreme
         reticence. In fact, Jameson found the situation to be so potentially
         troublesome that he called for backup. To this extent, we do find
         that the initial disturbance was an ongoing matter that continued
         right up until the Terry search was conducted.

Trial Court Opinion, Suppression, 10/20/16, at 5-6.

         Based on the evidence of the Commonwealth presented at the

suppression hearing, we conclude Lieutenant Jameson had reasonable

suspicion to search Appellant. Because we find the record supports the court’s

factual findings and its legal conclusions are correct, Appellant’s second issue

fails.

         Judgment affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2018




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