J-S18004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 706 WDA 2017


         Appeal from the Judgment of Sentence imposed April 12, 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 12, 2018

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

imposed in the Court of Common Pleas of Beaver County on April 12, 2017,

following his convictions of firearms 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), respectively.1 Upon review, we affirm.




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1 Appellant also has appealed from a judgment of sentence imposed on
February 21, 2017 following his conviction of persons not to possess a firearm.
18 Pa.C.S.A. § 6105(a)(1). See No. 851 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
unrelated to the January 21, 2016 incidents.
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     The underlying facts of this case were summarized by the trial judge,

the Honorable Harry E. Knafelc, as follows:

           Shortly after 10:00 AM on January 21, 2016, in Ambridge,
     Pennsylvania, Lt. Brian M. Jameson of the Ambridge Police
     Department was dispatched to Ambridge Towers, apartment 910,
     for a disturbance at the behest of the building manager Babette
     [Robertson]. Upon arrival, Babette reported to Lt. Jameson that
     “Hondo” Timothy Hollins was in Marc Ellis’s apartment and that
     they were both drunk and screaming. Babette further reported
     that there was an incident with a female and all of the tenants on
     the floor were disturbed as a result. Lt. Jameson proceeded to
     the ninth floor of Ambridge Towers where upon exiting the
     elevator, he could hear a stereo being played at high volume and
     two males screaming at each other over the stereo using profane
     language.

           Lt. Jameson knocked on the door and the two males argued
     with one another over who would open the door. The door was
     opened by Timothy Hollins who was shouting at Marc Ellis, who in
     turn was yelling at Mr. Hollins for answering Mr. Ellis’ door. Lt.
     Jameson spoke with Marc Ellis and explained to him that he was
     called to his apartment at the building manager’s request because
     the loud noise was causing a disturbance.

            Mr. Ellis reported to Lt. Jameson that he and Mr. Hollins
     were drinking and another individual, Anitra Truss, was with them
     until a man [Appellant] Willie Hill showed up and demanded that
     Ms. Truss leave with him while holding a gun at his side. Mr. Ellis
     further reported to Lt. Jameson that he believed Mr. Hill was in
     Mr. Hollins[’] apartment with Ms. Truss.

            Following this discussion, Mr. Ellis went back into his
     apartment and Lt. Jameson showed Mr. Hollins into the elevator
     and sent him down to the seventh floor where Mr. Hollins’s
     apartment was located so that he could sober up. At this time,
     Lt. Jameson called for backup. Shortly thereafter, Mr. Hollins
     returned to the ninth floor via the stairwell and Lt. Jameson then
     escorted him back to his apartment and advised him he was
     already being cited for disorderly conduct and would be arrested
     if he left his apartment again.




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              At this time, Lt. Jameson stepped into the stairwell and
        called Sgt. Kleber to respond to Ambridge Towers to assist him.
        While still in the stairwell, Anitra Truss descended the stairwell,
        and Lt. Jameson stopped her to ask her what happened earlier
        with Mr. Ellis and Mr. Hollins. Ms. Truss said she knew nothing
        and said she was heading to Mr. Hollins[’] apartment. Lt. Jameson
        informed her that he was intoxicated and that she should leave
        him alone. Ms. Truss then returned up the stairwell.

              Lt. Jameson then met up with Babette on the sixth floor
        where an emergency medical alarm was going off in an empty
        apartment. They shut the alarm off and then returned to the
        seventh floor via the stairwell. As they reached the seventh floor,
        Sgt. Kleber exited the elevator on the seventh floor. As Sgt.
        Kleber exited the elevator, Willie Hill walked out of Mr. Hollins[’]
        apartment.     Lt. Jameson recognized Mr. Hill from previous
        encounters and directed him to stop and place his hands on the
        wall. Lt. Jameson then proceeded to perform a Terry[2] frisk on
        Mr. Hill as Mr. Ellis and Mr. Hollins had both reported they
        personally witnessed Mr. Hill carrying a gun approximately thirty
        minutes earlier.

               While patting Mr. Hill’s waistband, Lt. Jameson immediately
        felt and recognized the handle of a gun on Mr. Hill’s right hip that
        was concealed by Mr. Hill’s shirt. Lt. Jameson removed the gun
        from Mr. Hill’s waistband and identified it as a Ruger P89DC 9 mm
        with 12 rounds loaded in to the magazine and the hammer cocked.
        At trial, Lt. Jameson testified that he asked Mr. Hill if he had a
        permit to carry the firearm to which Mr. Hill replied, “what do you
        think?”

               Lt. Jameson then took Mr. Hill into custody and placed him
        in handcuffs, after which Lt. Jameson conducted a search incident
        to arrest and discovered an unlabeled pill bottle in Mr. Hill’s right
        pocket with five (5) unopened packets—which appeared to be in
        the original consumer packaging—labeled Suboxone. Mr. Hill was
        then transported to the Ambridge Police Station where Officer AJ
        Bialik gave Mr. Hill a verbal Miranda Warning and subsequently
        asked if he had a prescription for the Suboxone found on his
        person. Mr. Hill stated that he did not have a prescription.


____________________________________________


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

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           Lt. Jameson then ran a criminal history check on Willie Hill
     which showed that Mr. Hill had pled guilty to a felony possession
     with intent to deliver charge on April 30, 2010. Following a check
     with the Sheriff’s Department, it was also ascertained that Mr. Hill
     had not been issued a firearm permit.

            Charges of receiving a stolen firearm, person not to possess
     a firearm, firearms not to be carried without a license, possession
     of a controlled substance, terroristic threats, and simple assault
     were filed by Lt. Jameson on January 21, 2016.

Rule 1925(a) Opinion, 6/15/17, at 1-4 (footnotes and some capitalization

omitted).

     The trial court also provided a procedural history, see id. at 4-5, which

we summarize here as follows.

     In response to the charges filed against him, Appellant filed a motion to

suppress evidence of the Ruger handgun and the Suboxone, asserting those

items were the products of an illegal search. Following a suppression hearing

on October 4, 2016, the Honorable Dale Fouse denied the motion, finding Lt.

Jameson “had the required level of reasonable suspicion to conduct a Terry

search of [Appellant].” See Opinion, Suppression, 10/20/16, 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. Judge Fouse

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

     Appellant proceeded to a jury trial on the sole count of persons not to

possess a firearm on January 11, 2017 before Judge Fouse. The jury returned

a verdict of guilty. On February 21, 2017, Judge Fouse sentenced Appellant

to a term of imprisonment of not less than five nor more than ten years.

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Appellant filed post-sentence motions that were denied by Judge Fouse on

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

pending at No. 851 WDA 2017.

      Meanwhile, on March 15, 2017, Appellant proceeded to a jury trial on

the remaining counts with Judge Knafelc presiding. The jury found Appellant

guilty of firearms not to be carried without a license and possession of a

controlled substance, and returned a verdict of not guilty on the remaining

charges. On April 12, 2017, Judge Knafelc sentenced Appellant to a term of

not less than one nor more than two years in prison on the firearms charge,

to be served concurrently with his sentence for persons not to possess

firearms.     No further penalty was imposed on the controlled substance

conviction.

      Appellant’s post-sentence motions were denied by Judge Knafelc and

Appellant filed a timely notice of appeal on May 11, 2017. Appellant and the

trial court complied with Pa.R.A.P. 1925, with Judge Knafelc issuing a Rule

1925(a) Opinion on June 15, 2017.

      In this appeal, Appellant asks us to consider the following issues:

      I.      Was the evidence insufficient to support the verdict of guilty
              of Person 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.     Where the drugs that were found on [Appellant] were
              packets of a something designated as Suboxone and there


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              was no evidence as to the time frame or manner that these
              packets were placed in the pill bottle, did the
              Commonwealth prove without chemical analysis that the
              mater [sic] in the packets was suboxone?

Appellant’s Brief at 8.

       Before addressing Appellant’s issues, it is apparent that Appellant has

mistakenly repeated the first issue from his appeal docketed at No. 851 WDA

2017 as the first issue included in the instant appeal. In Paragraph I of his

Summary of the Argument, he does not include any argument relating to

firearms but instead suggests the evidence was insufficient to show the

substance found on Appellant was a controlled substance (Appellant’s Brief at

12, ¶ I).    Further, the heading for Argument I reads, “The evidence was

insufficient to support the verdict of guilty of possession of a controlled

substance because of the lack of proof showing that the substance was a

controlled substance.”       Appellant’s Brief at 13 (capitalization omitted).   As

stated, that contention more closely squares with the second issue set forth

above.3




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3  We note that the Commonwealth did not question Appellant’s apparent
misstatement of the issue but instead addressed the sufficiency of evidence
supporting Appellant’s conviction of carrying a firearm without a license. As
the Commonwealth explains, “[I]t was established through [Lt.] Jameson that
. . . [Appellant] did not possess a validly issued license to carry a concealed
weapon.” Commonwealth Brief at 10 (citing Notes of Testimony, 3/15/17, at
98-99). Nowhere in his brief does Appellant contest the sufficiency of
evidence relating to a license to carry.

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      As for his second issue, in the Summary of Argument, Appellant

contends the officer did not have sufficient justification to conduct a pat down.

Appellant’s Brief at 12, ¶ II.   The heading for Argument II provides, “The

arresting officer was not 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.” Id. at 14 (capitalization omitted).

      Our appellate rules confine our consideration of issues to ones “stated

in the statement of questions involved or [] fairly suggested thereby[.]”

Pa.R.A.P. 2116(a). “[O]rdinarily, no point will be considered which is not set

forth in the statement of questions involved or suggested thereby.” Thomas

v. Elash, 781 A.2d 170, 177 (Pa. Super. 2001) (citing Pa.R.A.P. 2116(a)).

Nevertheless, because the issues addressed in the Argument section of

Appellant’s brief are consistent with those presented in his Summary of

Argument, we shall overlook the obvious error in the phrasing of Appellant’s

Statement of Questions Involved and entertain the issues as addressed in the

Summary of Argument and Argument sections of his brief, challenging the

sufficiency of evidence for his conviction for possession of a controlled

substance and the denial of his motion to suppress.

      We first consider Appellant’s challenge to the sufficiency of evidence. 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

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      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
      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) (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 convict a person of possession of a controlled substance under

35 P.S. 780-113(a)(16), the Commonwealth must prove that Appellant

knowingly or intentionally possessed a controlled substance. Here, Appellant

contends there was no proof that the substance found in his pocket was a

controlled substance.

      As reflected above in Judge Knafelc’s recitation of the facts, Lt. Jameson

conducted a search incident to Appellant’s arrest and discovered an unlabeled

pill bottle in Appellant’s right pocket that contained five sealed packets labeled

Suboxone, each seemingly in its original consumer packaging.            Appellant

admitted he did not have a prescription for Suboxone.




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      As the trial court explained, there is no question that Suboxone is listed

as a controlled substance in Pennsylvania and that the packets at issue were

found in an unlabeled pill bottle on Appellant’s questions. Trial Court Opinion,

Second Appeal, 6/15/17, at 10. Still, it is necessary to demonstrate that the

items were, in fact, the controlled substance charged and that Appellant was

aware of the items’ presence. Id. Once again, the Commonwealth can sustain

its burden by wholly circumstantial evidence.       Miklos, 159 A.3d at 967

(citation omitted).

      The trial court found that a jury could reasonably conclude that

Appellant was aware he possessed a pill bottle that contained sealed packets

marked as Suboxone.       Trial Court Opinion, 6/15/17, at 11.      In its jury

instructions, the trial court charged that Suboxone is a controlled substance

in Pennsylvania but left it up to the jury to decide if the items seized from

Appellant contained Suboxone, even absent chemical analysis.

      Appellant acknowledges it is not necessary to prove a substance is a

“controlled substance” by chemical analysis. Either direct or circumstantial

evidence is sufficient.   Appellant’s Brief at 13 (citing Commonwealth v.

Stasiak, 451 A.2d 520 (Pa. Super. 1982); Commonwealth v. Leskovic, 307

A.2d 357 (Pa. Super. 1973)). He suggests that there is no such evidence

here, only “the fact it was taken from [Appellant.]” Id. at 14. We cannot

agree.




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       Citing Commonwealth v. Carpio-Santiago, 14 A.3d 903, 906-07 (Pa.

Super. 2011) and Leskovic, 307 A.2d 357, 358059 (Pa. Super. 1973), the

trial court recognized that chemical testing of a substance is not required

under Pennsylvania law to prove that the substance is in fact a controlled

substance. Id. at 11. The court acknowledged the source of the packets

seized from Appellant is unknown, but that fact is a matter of weight, not

sufficiency. Id. at 13. The court concluded:

       Given the totality of the circumstances in the case sub judice,
       where the Appellant was found with identical unopened packets
       labeled Suboxone, which were in the original commercial
       packaging with dosage information and other identifying markers,
       and the packets were all bound together and stuffed into an empty
       and unmarked prescription bottle, this [c]ourt finds that the
       Commonwealth produced sufficient evidence to meet each of the
       three elements set out in the jury instruction[4] and find Appellant
       guilty of [possession of a controlled substance].

Id. at 13-14.

       Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, and giving the Commonwealth the benefit of reasonable



____________________________________________


4 The court instructed the jury that the Commonwealth was required to prove
the following three elements beyond a reasonable doubt:

       First, that the item is in fact a controlled substance[;] Second,
       that the item was possessed by [Appellant]; and Third, that
       [Appellant] was aware of the item’s presence and that the item in
       fact was the controlled substance charged.

Trial Court Opinion, 6/15/17, at 10 (citing Pennsylvania Standard Jury
Instruction 16.01).


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inferences drawn from the evidence, we find the evidence was sufficient to

support Appellant’s conviction of possession of a controlled substance.

Appellant’s sufficiency challenge to his possession conviction fails.

       In his second issue, Appellant argues Lt. Jameson was not justified in

conducting a Terry frisk because the officer had no information regarding the

timeframe during which Appellant was seen with a gun and because he was

not engaged in any suspicious conduct when he was apprehended. From the

language in his Summary of Argument and in the Argument section of his

brief, it appears he is challenging the denial of the suppression of the firearm,

resulting in his conviction of carrying a firearm without a license rather than

his conviction of possession of a controlled substance.5

       In his Rule 1925(a) Opinion, Judge Knafelc indicated the he would not

address the suppression issue raised in Appellant’s Rule 1925(b) Statement,

instead deferring to the Opinion of Judge Fouse filed on October 20, 2016.

Rule 1925(a) Opinion, 6/15/17, at 6 n.6.

       As Judge Fouse recognized, 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


____________________________________________


5Nowhere in his second argument does Appellant mention his conviction for
possessing a controlled substance.

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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

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

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

      Judge Fouse concluded:

      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.

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

      Based on the evidence of the Commonwealth presented at Appellant’s

suppression hearing, we conclude Lieutenant Jameson had a reasonable

suspicion to search Appellant. Because we find the record supports Judge

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

second issue fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2018




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