Opinion
J-S73037-18 No. 789 WDA 2018
12-28-2018
COMMONWEALTH OF PENNSYLVANIA v. ORLANDO STANFORD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 23, 2018
In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003058-2015 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J. MEMORANDUM BY OLSON, J.:
Appellant, Orlando Stanford, appeals from the judgment of sentence entered on January 23, 2018, as made final by the denial of Appellant's post-sentence motion on May 14, 2018. We affirm.
The trial court thoroughly summarized the facts underling this appeal:
Trial commenced following jury selection on October 2, 2017. The Commonwealth first presented the testimony of Sergeant [Daniel] Uncapher. At the time of trial, Sergeant Uncapher was [a 24-year veteran of] the Allegheny Township Police Department. . . . Sergeant Uncapher worked as a patrolman at the time of the incident in 2014. He spent the majority of his time working "on the road" rather than at the station. Sergeant Uncapher's duties as a patrolman included accident investigation, general investigation, patrol operations, and answering calls for service. In addition, he would assist local police departments upon request. He also assisted other agencies in the past with the service of arrest warrants. Sergeant Uncapher testified that, in addition to receiving the written warrant, he [could] verify the validity of a warrant by contacting Westmoreland County 911. Westmoreland
County 911 will confirm or deny the warrant by running an NCIC search of the individual's name.
On December 21, 2014, Sergeant Uncapher was dispatched by Westmoreland County 911 to the Sandalwood apartment complex (hereinafter "Sandalwood"). [Westmoreland County 911] received an anonymous tip that [Appellant] was located at Sandalwood and there was an active warrant for his arrest. Sergeant Uncapher was also informed that [Appellant] was potentially armed with a weapon. He confirmed that there was an active warrant for [Appellant's] arrest through Westmoreland County 911. Westmoreland County 911 advised Sergeant Uncapher that there was an active warrant for [Appellant] out of Pennsylvania State Parole. [Sergeant Uncapher] was not aware of [Appellant] prior to this incident. He believed that the apartment was rented by Amber Lovelace, but he did not know this [information] prior to serving the warrant. Sergeant Uncapher requested assistance from Officer Hosack in serving the warrant. At the time of trial, Officer Hosack was no longer employed by the Allegheny Township Police Department.
Sergeant Uncapher testified that he was familiar with Sandalwood as a police officer. He described Sandalwood as a row of five [], two-story apartments with a downstairs living and kitchen area and upstairs bedrooms and a restroom. Upon arrival to Sandalwood, Sergeant Uncapher reported directly to the apartment in which [Appellant] was allegedly present. He observed that the front door of the apartment was open and approximately five [] to ten [] individuals were located throughout the first floor. Sergeant Uncapher announced his presence to the individuals and Lovelace immediately approached the door. He was not familiar with Lovelace prior to serving the warrant. Sergeant Uncapher testified that Lovelace was "very friendly" and she did not object to him being at her home. He asked for permission from Lovelace to enter the home. She confirmed that [Appellant] was in the apartment and was located in the upstairs bedroom. Sergeant Uncapher did not attempt to speak with the other individuals in the apartment because it was "so loud" and there were "so many people there." He maintained that he was not familiar with [Appellant] prior to this incident and he did not receive anything that would allow him to identify [Appellant].
Officer Hosack subsequently approached Sergeant Uncapher and Lovelace from the back door of the apartment. Sergeant Uncapher and Officer Hosack reported to the upstairs bedroom. In the bedroom, they observed a male lying on a bed where [Appellant] was reportedly located. The individual was later identified as [Appellant]. [Appellant] was the only individual located in the bedroom. Sergeant Uncapher testified that they shouted for [Appellant] and announced their presence, but [Appellant] did not respond. Sergeant Uncapher assumed [Appellant] was sleeping. Sergeant Uncapher and Officer Hosack subsequently began handcuffing [Appellant] and he woke up. Sergeant Uncapher explained who they were to [Appellant] and why they were there. He testified that [Appellant] was dressed in a tank top and a pair of dark colored jeans that day.
Sergeant Uncapher searched [Appellant] and Officer Hosack maintained control of [Appellant] during the search. Sergeant Uncapher could not recall if [Appellant] was sitting or standing during the search. He testified, however, that an individual is generally standing when he conducts a search. [Appellant] did not present any problems during the search. Officer Hosack indicated that a weapon was present in [Appellant's] "crotch area" and Officer Hosack retrieved an automatic pistol from this area. Sergeant Uncapher subsequently "cleared" the firearm. He testified that "clearing" the firearm consists of emptying the firearm's magazine and unchamber[ing] any rounds. He did not discover any rounds in the firearm's chamber, but he did recover eight [] rounds in the firearm's magazine. Sergeant Uncapher described the firearm as a nine-millimeter Taurus PT24/7. After Sergeant Uncapher cleared the weapon, he returned to his station. He entered the firearm into evidence and placed it into an evidence locker. The firearm was also submitted to the Crime Lab. The bullets were eventually destroyed in accordance with the department's policy against retaining ammunition.
Sergeant Uncapher contacted Pennsylvania State Parole and advised them that [Appellant] was in custody. [Appellant] was transported back to the Allegheny Township Police Department and was taken to the processing room and holding cell. Sergeant Uncapher testified that [Appellant]
requested to speak with him while he was entering charges and evidence. More specifically, [Appellant] was willing to speak with him if it "helps him out." Sergeant Uncapher read [Appellant] his Miranda rights, which are generally read from a departmental form. [Appellant] indicated that he still wished to speak with Sergeant Uncapher. [Appellant] told Sergeant Uncapher that he was aware that he was a felon and was not to possess a firearm. [Appellant] also stated that he was at the apartment on the night prior to the incident and was "hanging out" with Lovelace. At one point, [Appellant] supposedly met a male who was known as "Jay." [Appellant] allegedly purchased marijuana from Jay the night before and Jay possessed the firearm that was subsequently found on [Appellant]. Sergeant Uncapher testified that [Appellant] agreed to hold the weapon for Jay and he fell asleep with it in his pants. Sergeant Uncapher was not aware if Jay was present at the apartment on the date of the incident.
Sergeant Uncapher subsequently prepared a police report of the incident. He did not obtain a written statement from [Appellant] and did not provide a specific reason as to why he did not take a written statement. He did, however, state that [Appellant] did not provide much information to him aside from the name "Jay." Sergeant Uncapher asked questions to the other residents of Sandalwood regarding Jay, but no one could confirm his identity. Additionally, he identified "Cade Kennamuth" as the last registered owner of the firearm found on [Appellant].
The Commonwealth thereafter presented the testimony of Officer Seth Hosack. At the time of trial, Officer Hosack was employed by the New Kensington Police Department as a police officer. He worked as a police officer for [13] years. On the date of the incident, Officer Hosack was employed by the Allegheny Township Police Department as a patrolman. Officer Hosack testified that he received information that a wanted individual was armed at Sandalwood. Officer Hosack and Sergeant Uncapher reported to Sandalwood. Upon their arrival, Sergeant Uncapher traveled to the front and Officer Hosack went to the back of the residence. He testified that
the back door of the apartment was open. At one point, Officer Hosack observed Sergeant Uncapher speaking with Lovelace. He testified that Lovelace did not appear to be agitated with their presence and the individuals at the apartment were "very nice." Lovelace ["pointed that [Appellant] was upstairs in the bedroom at the top of the stairs." N.T. Trial, 10/2/17, at 76].
Officer Hosack and Sergeant Uncapher proceeded to the upstairs bedroom of the apartment. Officer Hosack testified that an individual appeared to be sleeping in the bedroom. This individual was later identified as [Appellant]. Officer Hosack holstered his weapon and held his Taser to protect Sergeant Uncapher as he apprehended [Appellant]. Officer Hosack thereafter searched [Appellant] while he was secured in handcuffs and lying on the bed. He could not recall the direction in which [Appellant] was lying. Officer Hosack testified that he reached near [Appellant's] "crotch area" and felt what he believed to be a firearm based on its shape, size, and density. He announced the presence of the weapon while searching [Appellant] and retrieved a [firearm] with "some difficulty." Officer Hosack testified that [Appellant] was wearing multiple layers of clothing and the firearm was found in the front flap of [Appellant's] long underwear. Officer Hosack gave Sergeant Uncapher the weapon while he secured [Appellant]. Sergeant Uncapher "cleared" the weapon. They subsequently proceeded to the police station. Sergeant Uncapher filed [Appellant's] charges. Officer Hosack was not present for any statements made by [Appellant] at the police station and he did not participate in the investigation of [Appellant's] case. He was also not aware of any fingerprint evidence that may have been recovered from the firearm.
Sergeant Uncapher was thereafter called again by the Commonwealth to testify. The Commonwealth requested the opportunity to briefly question Sergeant Uncapher in response to questions asked by Defense Counsel regarding fingerprint or DNA evidence on the firearm. Sergeant Uncapher was familiar with the availability of fingerprint and DNA testing at the State Police Crime Lab in Greensburg. He testified that these tests may be costly depending on the number of tests that are required. Sergeant Uncapher does not generally consider this in determining whether to submit
items for fingerprint or DNA testing, unless there is a subsequent AFIS hit on a ballistics cartridge. He testified that it is not common to submit items that are found on a person's body for [fingerprint] or DNA testing. Sergeant Uncapher was not aware of the exact number that it would have cost to perform testing in the instant case. He estimated, however, that the cost to perform testing could have been "in the thousands." Sergeant Uncapher testified that, to his knowledge, the firearm that was found on [Appellant] was never tested for fingerprints.
Upon the conclusion of the Commonwealth's case, [Appellant's] counsel moved for a judgment of acquittal with respect to both of [Appellant's] charges. He argued that the case began with an anonymous tip and the testimony of Lovelace and the individual who made the anonymous tip were not presented by the Commonwealth in this case. [Appellant's] counsel maintained that the Commonwealth provided the testimony of the officers only, who indicated that [Appellant] had a firearm. Ultimately, [counsel argued] that the Commonwealth was unable to establish that [Appellant] had the intent to possess, control, or use or carry a firearm. [Appellant's] counsel reiterated that [Appellant] was sleeping in the bed and allegedly had the firearm on his person. He [argued] that insufficient evidence was presented to establish that [Appellant] had the requisite intent for these charges to be submitted to the jury. Furthermore, he restated that the gun was never processed for prints or DNA evidence. [Appellant's] motion was noted for the record and denied.
. . .
[Appellant] additionally testified at trial regarding the incident. On the date prior to [Appellant's] arrest, he [traveled] to Lovelace's apartment at Sandalwood. He identified Lovelace as his friend. [Appellant] stated that he knew Lovelace for about a month and Sergeant Uncapher's statement that he knew her for approximately two (2) weeks was incorrect. [Appellant] testified that there were about four [] to five [] other individuals present at Lovelace's apartment. He was not familiar with all of the individuals. He did recall, however, that one of the individuals was named Zach Ferguson. At the apartment, they were "smoking,
hanging out, laughing, watching videos, [and] movies." At around 1:00 or 2:00 a.m., [Appellant] fell asleep in the upstairs master bedroom of the apartment. He did not recall informing Sergeant Uncapher that he fell asleep at approximately 4:00 a.m. and indicated that his statement was incorrect. [Appellant] testified that there were two (2) bedrooms located in the apartment. Additionally, no one else was present in the bedroom with [Appellant] when he went to sleep; however, several other individuals were still present in the apartment at the time he went to sleep and they were mostly downstairs.
[Appellant] woke up from sleeping while he was being handcuffed. He testified that he heard the officer announce his presence and request [Appellant's] identity. [Appellant] announced his identity to the officer. [Appellant] denied obtaining a firearm from anyone and testified that a firearm was not located on his person at the time he went to sleep. [Appellant] also claimed that he never observed the firearm that he was charged with possessing. He testified that he did not know that he had an active warrant out for his arrest due to missing a parole appointment. [Appellant] was searched while he was being handcuffed. He testified that he was lying on his right shoulder during the search and the officer helped him get out of bed. Additionally, he testified that Sergeant Uncapher's statement as to what he was wearing was incorrect and he was not wearing long underwear or jeans when he woke up. He also stated that he was not wearing gym shorts. Rather, [Appellant] claimed that he was dressed in a white tank top, boxers, and socks at the time he was handcuffed. He testified that he asked to put on his pants and shoes after he was handcuffed and the officers permitted him to do so. He also stated that one of the officers assisted him with putting additional clothing on. Additionally, [Appellant] put on long johns. [Appellant] also testified that he was searched by the officers after he was permitted to put on his additional clothing. He also did not recall seeing anyone else arrested at the apartment.
[Appellant] recall[ed] signing a document entitled "Constitutional Rights" on the date of the incident that was prepared by Sergeant Uncapher. [Appellant] testified that he was located in the Allegheny Township Police Department holding cell while signing the document. The document
informed [Appellant] of his rights and included a statement providing that the officer read [Appellant] his rights and [Appellant] understood what his rights were. Additionally, it provided that [Appellant] was willing to make a statement and answer the questions asked of him. It also stated that [Appellant] did not wish to have a lawyer present. The document further indicated that no promises or threats had been made to induce [Appellant] to make a statement and no pressure or coercion of any kind had been used against him. [Appellant] spoke voluntarily with Sergeant Uncapher after signing the document. [Appellant] testified that Sergeant Uncapher asked him if he was willing to answer a few questions and he agreed. [Appellant] denied initiating the conversation with Sergeant Uncapher and stating that he would like to help himself out if he could. He testified that Sergeant Uncapher did not provide him with the option to have his statement written or recorded.
[Appellant] testified that Sergeant Uncapher's partner was also present during his questioning. [Appellant testified that he] told Sergeant Uncapher that he was at Sandalwood for [one to two] days and he knew Lovelace. [Appellant] also informed Sergeant Uncapher that he thought Lovelace was a "good person" and they did not have a romantic relationship. Additionally, [Appellant] told Sergeant Uncapher that he knew Lovelace for about a month. He testified that he knew he had a warrant issued by probation and parole due to missing a scheduled appointment with his parole officer. He also informed Sergeant Uncapher that he had a few discrepancies with probation and parole regarding working and missing appointments. [Appellant] was aware that he was not allowed to possess any firearms. [Appellant] did not question Sergeant Uncapher when he was asked if he knew he was not allowed to possess a firearm. Instead, [Appellant] stated that he was not "worried about it" because he did not have anything to do with the firearm. [Appellant] denied having an interest in guns and telling the officer that he had an infatuation with guns. He also testified that he did not tell Sergeant Uncapher that he fell asleep at 4:00 a.m. with a gun in his pants.
[Appellant] denied telling Sergeant Uncapher that an individual by the name of Jay was present at the apartment. Additionally, [Appellant] testified that he did not tell the
officer that he had purchased marijuana from Jay at the apartment. He also denied ever telling the officer that Jay showed him a gun. He testified that no one in the apartment had a gun that he had asked to see and he never asked anyone to let him hold a gun while he was at the apartment. [Appellant] again testified that he was not in possession of a firearm at the time he went to sleep. [Appellant] disagreed with the officer's testimony regarding what he had told the police about the incident. [Appellant] testified that he was asked general questions by the officer regarding his background, employment, history, and living situation. [Appellant] resided with his grandmother at the time of the incident and he did not live at Sandalwood.Trial Court Opinion, 5/14/18, at 5-14 (internal citations and some internal capitalization omitted).
Additionally, the officer allegedly asked [Appellant] if he knew who owned the firearm and [Appellant] replied in the negative. [Appellant] testified that he was not shown the firearm and the officer did not notify him that he was in possession of a firearm. [Appellant] alleged that he did not know which firearm the officer was referring to, but he assumed that the officer was referencing the firearm that [Appellant] observed in the front seat of the police vehicle. [Appellant] testified that he was handcuffed and seated in the back seat of the police vehicle. He was able to observe the firearm, although there was a glass partition separating the front and the back seats. [Appellant] stated that the firearm he observed was the same firearm that was presented in the courtroom during trial. This was allegedly the first time [Appellant] had viewed the firearm. [Appellant] testified that he was not concerned with the firearm because it was not found on his person. He did not question the fact that he was being asked about a firearm and he was not troubled by this because he had "nothing to do with it." [Appellant] did not recall hearing anyone state the terms "gun," "weapon," or "firearm" in the apartment. He also did not remember the officers ever mentioning a firearm while they were in the apartment and when he was awakened from his sleep. [Appellant] testified that he did not see any police officers carrying a gun out of the house with him. Overall, [Appellant] believed that he was innocent of the charges that were filed against him.
Miranda v. Arizona , 384 U.S. 436 (1966).
The jury found Appellant guilty of persons not to possess firearms and firearms not to be carried without a license; on January 23, 2018, the trial court sentenced Appellant to serve an aggregate term of four to ten years in prison.
18 Pa.C.S.A. § 6105(a)(1) and 6106(a)(1), respectively.
The trial court denied Appellant's post-sentence motion on May 14, 2018 and Appellant filed a timely notice of appeal. Appellant raises five claims to this Court:
1. Whether the [trial court] erred in determining the jury's verdicts were based on sufficient evidence?Appellant's Brief at 3 (some internal capitalization omitted).
2. Whether the [trial court] erred [in concluding that] the jury's verdicts were [not] against the weight of the evidence?
3. Whether the [trial court] erred in denying [Appellant's] suppression motion, finding there was reasonable suspicion to pursue [Appellant] based on an anonymous phone call?
4. Whether the [trial court] erred in denying [Appellant's] motion in limine to exclude the hearsay testimony of Amber Lovelace, used to prove [Appellant] was located at - and permitted the officers into - the Sandlewood apartment?
5. Whether the [trial court] erred in overruling [Appellant's] objection to the dismissal of Juror #21, who was excluded on the basis of race in violation of Batson v. Kentucky [, 476 U.S. 79 (1986)]?
We have reviewed the briefs of the parties, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Meagan Bilik-DeFazio. We conclude that Appellant is not entitled to relief in this case and that Judge Bilik-DeFazio's May 14, 2018 opinion meticulously and accurately disposes of Appellant's issues on appeal. Therefore, we affirm on the basis of Judge Bilik-DeFazio's thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Bilik-DeFazio's May 14, 2018 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/28/2018
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