J-S73016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JORDAN ANTHONY BATTY                   :
                                        :
                   Appellant            :   No. 1322 MDA 2019

            Appeal from the PCRA Order Entered June 20, 2019
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0002942-2015


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 29, 2020

     Jordan Anthony Batty appeals nunc pro tunc from the trial court’s order

denying, after a hearing, his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 954-9546. We affirm.

     In the afternoon of March 24, 2015, York City police officers Clayton

Glatfelter and Dan Kling responded to a call of shots fired in the area of

Pattison and Prospect Streets. N.T. Preliminary Hearing, 5/5/15, 5. As they

travelled eastbound on Prospect Street, York County Control disseminated

descriptions of the alleged perpetrators, a black male wearing a blue hooded

sweatshirt and a black or possibly Hispanic male wearing a black hooded

sweatshirt. Id. The report indicated that the perpetrators were running from

a house on Prospect Street toward a “Mom and Pop” store on East Prospect
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Street. Id.1     County Control continually updated the report, finally alerting

law enforcement that the male wearing the black hoodie was carrying a gun

and that the perpetrators had entered the Mom and Pop store. Id. As he

pulled up to the store in his police cruiser, Officer Glatfelter looked to his left

and saw a black male wearing a blue-hooded sweatshirt through the store’s

screen door. Id. at 6. After parking the police cruiser, he watched the man

in the blue hooded sweatshirt exit the store; Officer Glatfelter called him back

and he was taken into police custody. Id. At that point, Officer Glatfelter

opened the front screen door of the store and ordered Batty, who matched

the description of a light-skinned black or Hispanic male wearing a black

hooded sweatshirt, to exit the store and put his hands on an outdoor soda

machine. Id. at 11. Officer Glatfelter then asked Batty whether he had a

weapon on him, Batty stated “yes” and then “started to drop his hand to his

right side, at which time [Officer Glatfelter] pushed his hand back up onto

[the] soda machine and reached out and removed the weapon], a .22 caliber

revolver,] from [Batty’s] waistband” which contained live rounds as well as
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1 York County police officers Timothy Clymer and Chuck Lloyd Crumpton were
riding together in their marked patrol vehicle and were also dispatched to the
subject area based on the report of shots fired. N.T. Preliminary Hearing,
5/15/15, at 14. They, like Officers Glatfelter and Kling, were updated with the
same information from County Control as they drove to Prospect Street. Id.
On their way to the scene, the officers were flagged down by several witnesses
on nearby Courtland Street who observed the shots that had been fired. Id.
at 15. The officers saw apparent bullet holes in two vehicles parked on the
street. Id. Officers Clymer and Crumpton ultimately arrived on the scene at
the shop where Batty and his cohort had been detained. Id.



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spent casings. Id. at 12, 22. Officer Glatfelter testified at the preliminary

hearing that he could not see the gun on Batty when he first saw him at the

store. Id. at 7.

        On September 11, 2015, a jury convicted Batty of receiving stolen

property (RSP),2 firearms not to be carried without a license,3 and possession

of a firearm prohibited.4 He was sentenced to 3½ to 7 years’ imprisonment

for possession of a firearm not to be carried without a license, a concurrent

term of 2½ to 5 years of imprisonment for RSP, and a consecutive term of 5-

10 years’ imprisonment for possession of firearm prohibited.         At Batty’s

sentencing hearing, the trial judge advised him that either trial counsel had

been ineffective during closing argument or the trial court erred when it issued

its jury instructions. The court suggested Batty waive his appellate rights and

orally move for a new trial, which the court indicted it would grant. Batty

ultimately agreed to waive his appellate rights and moved for relief under the

PCRA. The court ordered Batty receive a new trial and that new counsel be

appointed. The Commonwealth noted its objection.

        On November 6, 2015, the Commonwealth filed a notice of appeal

claiming that the trial court erred by granting Batty a new trial under the

PCRA, where the court did not first conduct an evidentiary hearing to

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2   18 Pa.C.S. § 3925(a).

3   18 Pa.C.S. § 6106(a)(1).

4   18 Pa.C.S. § 6105(a)(1).

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determine whether counsel acted reasonably and whether Batty was

prejudiced by counsel’s actions. See Commonwealth v. Batty, No. 1961

MDA 2015 (Pa. Super. filed June 29, 2016) (unpublished memorandum). On

appeal, our Court reversed the order granting Batty a new trial, vacated

Batty’s judgment of sentence, and remanded for resentencing, stating:

       We cannot condone the process followed by the trial court. The
       appellate and post-conviction review process is in place to ensure
       that all parties receive a fair and impartial proceeding. Here, the
       trial court skipped both avenues for relief, the appellate process
       and the post-conviction process. The trial court provided no law
       in support of his [sic] decision to avoid these avenues. Rather,
       the trial court found that either the trial court erred when
       instructing the jury or counsel was ineffective during his closing
       argument, without providing legal analysis in support of this
       conclusion.

       Trial courts are not permitted to bypass the appellate and post-
       conviction proceedings, particularly where the parties are not in
       agreement with the proposed resolution.                 Here, the
       Commonwealth noted it was uncomfortable with the proposed
       procedure and objected, both before and after sentencing.
       Further, although Batty ultimately orally agreed to waive his right
       to appeal, this agreement occurred only after the trial court made
       numerous attempts to convince him to do so and after the trial
       court repeatedly informed Batty that he would receive a new trial
       and new counsel if he waived his appellate rights.

Id. at 10-11.

       On remand, the court appointed new counsel and, on October 27, 2016,

sentenced Batty to an aggregate term of 8½ to 17 years in prison.5           On

November 23, 2016, Batty filed post-sentence motions nunc pro tunc due to

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5 The court sentenced Batty to 3½-7 years in prison for RSP, a concurrent
term of 3½-7 years in prison for carrying a firearm without a license, and a
consecutive term of 5-10 years in prison for possession of a firearm prohibited.

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counsel’s recent appointment.   The trial court granted a new trial on January

10, 2017, finding that the court’s jury instruction on the charge of possession

of a firearm prohibited was erroneous and “usurped the function of the jury to

determine a verdict in a criminal case[.]” Trial Court Opinion, 1/10/17, at 5.

On February 8, 2017, the Commonwealth filed a notice of appeal. On April 9,

2018, our Court reversed the trial court’s order granting a new trial and

reinstated Batty’s October 2016 judgment of sentence, concluding that the

court’s jury instruction accurately and clearly set forth the elements of the

crime of possession of a firearm prohibited. Commonwealth v. Batty, 169

A.3d 70 (Pa. Super. 2017).

      On December 21, 2018, Batty filed a pro se PCRA petition. The trial

court appointed counsel, who filed a “supplemental” petition. On June 20,

2019, the court held an evidentiary hearing on Batty’s petition and, at the

conclusion of the hearing, denied his petition.    Batty subsequently filed a

petition seeking the right to file a nunc pro tunc notice of appeal, which the

trial court granted on August 6, 2019. Batty filed his nunc pro tunc notice of

appeal and a timely Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. Batty raises the following issue for our review: “Whether the

trial court committed an error of law and/or abuse of discretion by denying

[Batty’s] PCRA petition and concluding that his trial counsel did not render

ineffective assistance of counsel by failing to file a requested motion to

suppress?” Appellant’s Brief, at 4.




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       On appeal from the denial of PCRA relief, we must determine whether

the PCRA court’s findings are supported by the record and whether the order

is otherwise free of legal error.       Commonwealth v. Blackwell, 647 A.2d

915, 920 (Pa. Super. 1994). We will not disturb the PCRA court’s findings

unless they have no support in the record. Id.

       Batty contends that trial counsel was ineffective6 for failing to file a

motion to suppress the firearm that was seized during a search and seizure of

his person in response to an anonymous 911 call. Specifically, Batty relies on

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), to support his

argument that Officer Glatfelter lacked the authority7 to search him where the
____________________________________________


6 It is well-established that in order to prevail on an ineffective assistance of
counsel claim, the petitioner must establish: “(1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, “counsel is presumed to
be effective and the burden of demonstrating ineffectiveness rests on
appellant.” Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
2010). “The failure to prove any one of the three [ineffectiveness] prongs
results in the failure of petitioner’s claim.” Id. Finally, a petitioner alleging
ineffective assistance of counsel must show that, “in the circumstances of the
particular case,” the actions of counsel “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S. § 9543(a)(2)(ii).
7 In his supplemental PCRA petition Batty claims that the police lacked
probable cause to conduct a Terry stop and frisk. See Supplemental PCRA
Petition, 5/22/19, at 6. We note, however, that such a search is premised
upon reasonable suspicion that criminal activity has occurred or is about to
occur. See Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969) (to justify
warrantless pat-down of person under Terry, police must have reasonable
suspicion based on specific and articulable facts that crime occurred and that
person being detained is armed and dangerous); Jackson, 698 A.2d at 573



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officer “did not independently corroborate that a shooting had actually

occurred, or that [Batty] was potentially involved, prior to conducting a search

outside of the store.” Appellant’s Brief, at 10.8
____________________________________________


(Pa. 1997) (“While the amount of information available to the police need not
rise to the level of probable cause, something more than an inchoate and
unparticularized hunch would be required [in order for the police to] . . .
conduct a limited, pat-down search for weapons when the officer has a
reasonable suspicion that the individual is armed and dangerous.”) (emphasis
added).

8 We recognize that the issue raised by Batty on appeal as well as the facts of
this case are readily distinguishable from those in Commonwealth v. Hicks,
208 A.3d 916 (Pa. 2019). In Hicks, our Supreme Court recently held that
allowing an officer to approach an individual and briefly detain him or her, in
order to investigate whether he or she was properly licensed to possess a
concealed firearm in public, contravened the requirements of Terry v. Ohio,
392 U.S. 1 (1968), and subverted the fundamental protections of the Fourth
Amendment. The Hicks Court further held that the trial court erred by
denying the defendant’s motion to suppress because, in consideration of the
totality of the circumstances, the facts did not support a finding of reasonable,
articulable suspicion that defendant was engaged in any manner of criminal
activity prior to his seizure and was seized solely due to the observation of a
firearm concealed on his person. See also Commonwealth v. Price, 2019
PA Super 368 (Pa. Super. filed Dec. 31, 2019) (where officer received radio
broadcast based on 911 call relaying black man wearing white tee-shirt and
gray shorts and driving silver Lexus with license plate “GWL8569” was located
on specific city block and in possession of firearm, officer lacked reasonable
suspicion to stop defendant who fit description because officer did not have
evidence to believe defendant was carrying firearm illegally, was engaged in
any other illegal activity, and did not observe him doing anything illegal before
stopping him).

Here, not only does Batty not raise this issue to support his contention that
counsel should have filed a motion to suppress, but the instant case involved
more than the officers investigating a report that an individual had been
observed carrying a firearm on his person. Rather, multiple reports indicated
that shots had been fired in the area by the suspected perpetrators. Cf.
Hicks, 208 A.3d at 950 (“There was no indication or apparent threat of



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        A police officer need not personally observe suspicious conduct leading

to the reasonable belief necessary for a Terry9 stop; he or she may rely upon

information received over the police radio to justify the initial stop.

Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995) (while

officer is prohibited from relying on unparticularized suspicion or “hunch” as

basis for Terry stop, he or she may rely on police radio broadcast if suspect

matches specific description given by individual who reported crime). In such

cases, the factors that must be considered in justifying an investigatory stop

include: the specificity of the description of the suspect in conjunction with

how well the suspect fits the given description; the proximity of the crime to

the sighting of the suspect; the time and place of the confrontation; and the

nature of the offense reported to have been committed. Commonwealth v.

Jackson, 519 A.2d 427, 430 (Pa. Super. 1986). A major factor justifying a

Terry stop when the suspicious conduct has not been personally observed is

the specificity of the description of the suspect. Id. Quoting Commonwealth

v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997) (plurality opinion), the Jackson

Court stated:

        The fact that the subject of the call was alleged to be carrying a
        gun, of course, is merely another allegation, and it supplies no
        reliability where there was none before. And since there is no gun
        exception to the Terry requirement for reasonable suspicion of
        criminal activity, in the typical anonymous caller situation, the
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violence, and no information suggesting that Hicks engaged in any type of
confrontation with another individual, physical, verbal, or otherwise.”).

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

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      police will need an independent basis to establish the requisite
      suspicion.

Jackson, 698 A.2d at 575 (emphasis added).

      In Jackson, the police received a report, based on an anonymous

telephone call, of a man in a green jacket carrying a gun. Other than the

jacket description and the man’s location, no additional details were provided.

When the officer arrived at the location, he saw a number of individuals, but

only the defendant was wearing a green jacket. The officer exited his vehicle

and immediately searched the defendant. During the search, no weapon was

found, but a small box containing cocaine fell to the ground. The defendant

filed an unsuccessful suppression motion claiming the tip did not justify a

Terry stop and frisk.    On direct appeal, our Court upheld the suppression

ruling and affirmed Jackson’s convictions.       On discretionary review, the

Supreme Court reversed, finding that the contents of the anonymous call did

not justify the stop because the tip contained insufficient information to

establish reasonable suspicion. The Court held that under such circumstances

the police must investigate further, and may only initiate a stop and frisk after

they acquire sufficient information to give rise to reasonable suspicion that

the individual was armed and dangerous.

      In Commonwealth v. Mackey, 177 A.3d 221 (Pa. Super. 2017) (en

banc), our Court recognized the important distinction between anonymous tips

and those that are from trusted or tested informants or members of the public

not concealing their identity. Distinguishing between the two types of tips,

the Court noted that because anonymous tipsters cannot be held accountable

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for making false allegations, it is particularly difficult for police to evaluate

their reliability.   Id. at 230.   Moreover, because they are not identified,

anonymous tipsters are not available to answer follow-up questions from

police. Id. Accordingly, in the case of an anonymous tip, an officer must

have additional corroborating information to determine whether a suspect is

carrying a firearm, committing a crime, or about to commit a crime before

justifying a Terry stop and frisk based on reasonable suspicion. Id. at 233.

      In the instant case, Tabitha Neal, a York County 911 emergency

services’ customer service quality control specialist, testified at Batty’s PCRA

hearing. Id. at 70. Neal, the record keeper in the department, keeps track

of computer-aided dispatch (CAD) reports, the same type of report involved

in the instant case. Id. at 71. Neal testified that an individual named Ruth

Rodriguez called emergency services and provided the information in the CAD

report leading to Batty’s arrest.    Id. at 75.   Neal testified that emergency

services takes the name and number of an identified caller for documentation

purposes. Id. at 83. Moreover, Neal testified that multiple individuals had

called into the center and provided similar reports of shots being fired and

described the alleged perpetrators. Id. at 82. Neal testified that the calls had

been merged together for informational purposes and provided to the police

officers. Id.

      Here, unlike the facts of McKay and Jackson, not only was there an

identified, non-anonymous caller reporting that shots had been fired and

giving a physical location and description of Batty and his cohort, but there

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were also multiple reports from unidentified callers that confirmed shots had

been fired in the area and that consistently physically described the alleged

perpetrators.   See Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.

Super. 2005) (“Indeed, identified citizens who report their observations of

criminal activity to police are assumed to be trustworthy, in the absence of

special circumstances, since a known informant places himself at risk of

prosecution for filing a false claim if the tip is untrue, whereas an unknown

informant faces no such risk.”) (citation omitted); see also Commonwealth

v. Thran, 185 A.3d 1041, 1046 (Pa. Super. 2018) (same). Had the report

been based on a single anonymous call not subject to corroboration and had

there been no criminal activity afoot (shots fired), we would agree with Batty

that his suppression claim may have arguable merit. However, those are not

the facts of this case.

      Accordingly, under a totality of the circumstances, including the

proximity in time and location of the crime to the sighting of Batty and the

fact that the physical descriptions matched those of the perpetrators, we

conclude that the police had reasonable suspicion to conduct a Terry stop and

frisk. Arch, supra. Counsel cannot be deemed ineffective when a petitioner’s

underlying claim has no arguable merit.       Spotz, supra.    Accordingly, we

affirm the trial court’s order denying Batty’s PCRA petition as the PCRA court’s

findings are supported by the record and are free of legal error. Blackwell,

supra.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/29/2020




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