Com. v. Stevenson

Decision Date28 February 2006
Citation894 A.2d 759
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Adam Terrell STEVENSON, Appellant.
CourtPennsylvania Superior Court

Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy Dist. Atty., Pittsburgh, for Com., appellee.

BEFORE: ORIE MELVIN, McCAFFERY, and POPOVICH, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, Adam Terrell Stevenson, appeals from the judgment of sentence imposed by the Honorable Kathleen A. Durkin after she convicted Appellant of one count each of aggravated assault,1 person not to possess a firearm,2 firearm not to be carried without a license,3 resisting arrest,4 and possession of a controlled substance (second offense).5 Specifically, Appellant asks us to determine whether (1) the trial court abused its discretion by failing to order the sequestration of a police witness; (2) the trial court erred by denying Appellant's motion to suppress and (3) the evidence was sufficient to support his conviction. Upon review, we affirm.

¶ 2 The relevant facts underlying this appeal, gleaned from the certified record, are as follows. On January 30, 2003, at approximately 1:20 a.m., Appellant and uniformed police officers Ronald Absten and John Prilla were, by coincidence, making purchases inside a convenience store in Pittsburgh. Officer Prilla expressed his belief to Officer Absten that Appellant had a firearm in the right front jacket pocket of his three-quarter-length leather jacket. Officer Absten then made his own assessment, based on Bureau of Alcohol, Tobacco and Firearms ("ATF") training he had received on identifying armed subjects and types of firearms. This training had included means of identifying certain mannerisms characteristic of persons not professionally familiar with carrying handguns. Also, the police officers had been trained to be cognizant of apparently weighted pockets and the visible outline of firearms pressing from inside the pockets. (Notes of Testimony ("N.T."), Suppression Hearing, 1/14/04, at 5-8).

¶ 3 Officer Absten was able to observe the bulging outline of a small handgun in Appellant's right pocket, and further observed that this pocket hung lower than its opposite, revealing that it contained an object of some weight. Officer Absten also noted that once Appellant made eye contact with the officers, he began to frequently look over his shoulders at them while touching his handgun through the outside of the pocket and making related adjustments to his clothing with his right hand. Based on his training and experience, Officer Absten concluded that these actions were mannerisms typical of a male individual who did not carry a firearm as part of his profession. (Id. at 8-9). In light of his prior police experience, these mannerisms and the location of the handgun on Appellant's person, also led Officer Absten to conclude that Appellant might be in possession of an unlicensed or illegal handgun. Officer Absten's experience, upon which he relied, involved several arrests of male individuals who carried illegal firearms in their jackets or pants front pockets. (Id. at 11-13).

¶ 4 The officers determined that it would be prudent to question Appellant about what they believed to be his handgun, outside of the establishment instead of within the confines of a small building with other persons present. Accordingly, the officers left the store and waited for Appellant to emerge. (Id. at 13). Their intent was to initiate an investigatory detention of Appellant. (N.T., Trial, 4/13/04, at 17.) When Appellant came out of the store, Officer Absten told him to raise his hands or place them on his head, and the officer reached immediately into the pocket to secure the handgun prior to asking questions about it. As Officer Absten took hold of the gun, however, Appellant pushed him away and began to flee. (Id. at 46.) Officer Prilla managed to grab Appellant and slow his progress, but Appellant retained possession of the gun, as it had slipped from Officer Absten's grip when Appellant pushed him away. (Id. at 47.)

¶ 5 The two officers then wrestled Appellant over the hood of a police car, and he was told repeatedly to stop resisting. Appellant continued the struggle, thrashed about, and tried to reach into his right pocket where he had his handgun. Unable to reach his pocket, Appellant twice "mule-kicked" Officer Absten in the left thigh.6 The officers were finally able to subdue Appellant after striking him with a blackjack, pepper-spraying his face, and punching him in the face. Once Appellant was subdued, Officer Absten was finally able to extract the blue semiautomatic .32 caliber Beretta handgun which had been in Appellant's pocket. (Id. at 48-49.) Officer Absten also recovered from Appellant's person, three "knotted baggy corners" containing a substance that, upon laboratory testing, was revealed to be cocaine. (Id. at 49-51.) Once he was placed in the police car following his arrest, Appellant stated to the officers, "You motherfuckers are lucky I didn't get to my gun." (Id. at 53.)

¶ 6 Officer Prilla "cleared" Appellant's gun at the arrest scene and discovered that the gun in fact had a live round in the chamber and another round in the magazine. (Id. at 23-24). Officer Eric Margolin, who had arrived at the scene, took possession of the gun. (Id. at 68.) It was Officer Margolin's responsibility to carry the gun to the police station in order to "package it" for the crime lab. In this instance, this procedure involved unloading the gun and making it safe for transport by opening the slide or barrel so that the gun could not discharge. Officer Margolin removed the slide, and placed the gun, the slide, and the two live rounds which had been recovered from the gun in an envelope, which he signed, taped, sealed, and sent to the crime lab. (Id. at 68-70.)

¶ 7 The gun then came into the possession of Deborah Chaklos, a criminologist with the Allegheny County Crime Lab. Ms. Chaklos reassembled, "field-tested,"7 and then test-fired the gun with one live laboratory round. The gun functioned normally. When Ms. Chaklos' second attempt to test fire the weapon failed, she determined that the firing pin had fallen out. She placed it back into position with her hands, and then was able to successfully test-fire the gun a second time. (Id. at 32-33, 40.)

¶ 8 Prior to trial, Appellant moved to suppress the gun seized during the arrest on the grounds that the police had neither reasonable grounds to suspect that criminal activity was afoot nor probable cause for an arrest. At the suppression hearing, Appellant objected to the Commonwealth keeping Officer Prilla at counsel table in order to assist the prosecution, which enabled Officer Prilla to be present during Officer Absten's testimony, and moved to sequester witnesses. Although Judge Durkin granted the motion to sequester, she nevertheless allowed Officer Prilla to remain at the Commonwealth's table during testimony. Officer Prilla did not testify at the suppression hearing. Judge Durkin ultimately denied Appellant's motion to suppress.

¶ 9 Appellant was convicted after a three-day trial at which Officers Prilla, Absten, and Margolin, and Ms. Chaklos all testified. After his judgment of sentence was entered, Appellant filed a timely appeal wherein he raises the following three issues for our review:

1. DID THE TRIAL COURT ERR BY NOT REQUIRING THAT ALL THE WITNESSES, I.E., BOTH POLICE OFFICERS, BE SEQUESTERED AT THE SUPPRESSION HEARING AND AT TRIAL, IN ACCORDANCE WITH THE SEQUESTRATION ORDER?

2. DID THE TRIAL COURT ERR IN FAILING TO GRANT [APPELLANT'S]

MOTION TO SUPPRESS IN THAT THE POLICE HAD NEITHER A REASONABLE SUSPICION THAT CRIMINAL ACTIVITY WAS AFOOT NOR PROBABLE CAUSE FOR AN ARREST AT THE TIME OF [APPELLANT'S] SEIZURE?

3. IN THE ALTERNATIVE, WAS NOT THE EVIDENCE ADDUCED AT TRIAL INSUFFICIENT TO SUPPORT THE AGGRAVATED ASSAULT, RESISTING ARREST, AND FIREARMS CONVICTIONS?

(Appellant's Brief at 5). We will address these issues seriatim.

A. Motion to Sequester

¶ 10 In his first issue, Appellant argues that the trial court abused its discretion by failing to grant his motion to sequester Officers Prilla and Absten at the suppression hearing and at trial during each other's testimony. Specifically, Appellant contends that since Officers Prilla and Absten were the only two witnesses who testified about the investigatory stop and subsequent arrest, it was "fundamentally unfair" to allow Officer Prilla to be present in court when Officer Absten testified at the suppression hearing, and to allow Officer Absten to be present at trial when Officer Prilla testified. (Appellant's Brief at 11-12).

¶ 11 Preliminarily, as a result of different procedural steps or omissions, we must determine to what extent Appellant has preserved his argument that the trial court abused its discretion by failing to grant his motion to sequester the officers first at the suppression hearing and then at the trial. Any issue not raised in a statement required by Pa.R.A.P. 1925(b) ("1925(b) statement") is deemed waived. Commonwealth v. Castillo, ___ Pa. ___, ___, 888 A.2d 775, 777 (2005); Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998). Rule 1925(b) provides that a trial court may enter an order directing the appellant to file a concise statement of matters complained of on appeal, and that failure to comply with this order shall be construed by the appellate court to be a waiver of the issue the appellant seeks to raise on appeal. Further, any issue not raised in the lower court is waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). See also Commonwealth v. May, 584 Pa. 640, 654, 887 A.2d 750, 758 (2005) (holding that an objection is waived if it was never put forth at trial); Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287 (Pa.Super....

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