Com. v. Patterson, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIK PATTERSON :
:
Appellant : No. 1252 EDA 2020
Appeal from the Judgment of Sentence Entered February 7, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008949-2018
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 4, 2021
Erik Patterson appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his conviction by a jury
of possession of a firearm by a prohibited person.1 After careful review, we
affirm.
The trial court set forth the relevant facts of the case as follows:
On the afternoon of October 31, 2018, Officer Anthony Hurley[, an
eleven-year veteran of the Philadelphia police force,] received a
radio call that there was an individual wearing a black jacket and
blue pants with a gun in the area of a drug treatment facility on 2558
North Front Street in Philadelphia. When Officer Hurley arrived on
[the] scene, a security guard and two other individuals were pointing
at [Patterson], who was walking nearby on Huntingdon Street, and
informed Officer Hurley that [Patterson] had pointed his gun at the
security guard. Officer Hurley approached [Patterson], who was
wearing a black jacket and blue pants, in his police vehicle and asked
[Patterson] to come over to his vehicle. [Patterson] complied[,] and
Officer Hurley patted [Patterson] down in order to determine
whether [he] had a gun on his person. Office Hurley asked
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1 18 Pa.C.S.A. § 6105.
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[Patterson] what had happened, to which [Patterson] responded
that he had gotten into an argument with the security guard because
the drug treatment facility had refused to give him treatment.
Officer Hurley then placed [Patterson] in the backseat of the police
vehicle so that he could go to speak with the witnesses. Before
leaving to speak with the witnesses, however, Officer Hurley noticed
[Patterson] fidgeting in the back seat of the vehicle. Officer Hurley
then opened the door to the police vehicle and observed [Patterson]
attempting to hide a gun magazine under the back seat. Officer
Hurley recovered the magazine, which contained seven live rounds
of .9mm bullets, and then handcuffed [Patterson]. Subsequently,
Officer Hurley noticed a firearm holster on the sidewalk
approximately 15 to 20 feet from where Officer Hurley had originally
stopped [Patterson]. Officer Hurley also discovered a loaded firearm
on top of a box in a trashcan approximately 5 feet from where the
firearm holster was recovered. The ammunition in the magazine fit
and functioned in the gun that was recovered. Thereafter,
[Patterson], who had previously committed an enumerated felony
that prohibited him from possessing a firearm, was placed under
arrest.
Trial Court Opinion, 8/7/20, at 2-3 (citations to notes of testimony omitted).
Patterson was charged with three violations of the Uniform Firearms Act
(VUFA), 18 Pa.C.S.A. §§ 6105, 6106, and 6108. Prior to trial, Patterson filed a
motion seeking to suppress physical evidence uncovered from the stop on the
following grounds: he was searched and arrested without probable cause; he
was subjected to a stop and frisk on less than reasonable suspicion; and he was
searched and arrested without a warrant. Omnibus Motion, 1/30/19, at 1. After
a hearing before the Honorable Charles Ehrlich on May 31, 2019, the court
denied the suppression motion.
Subsequently, on June 13, 2019, Patterson filed a motion in limine seeking
to exclude “all out-of-court statements [including any reference to a 911 call for
a person with a gun], descriptions [of his appearance, clothing, and direction of
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travel from the Computer Aided Dispatch (CAD)], and identifications . . .
including pointing [motions] made by unidentified individuals outside 2558 N.
Front Street.” Motion In Limine, 6/13/19, at 1-2.2 Prior to trial, the court heard
argument on Patterson’s motion in limine, after which the court denied the
motion, concluding that the evidence was admissible pursuant to the present
sense impression exception to the rule against hearsay. N.T. Motion In Limine
Hearing/Jury Trial, 8/20/19, at 17-18, 21-22.
Following a two-day trial in August 2019, before the Honorable Glenn B.
Bronson,3 a jury convicted Patterson of the above-stated VUFA offense.4 On
February 7, 2020, the court sentenced Patterson to 10-20 years’ incarceration.5
Patterson filed a post-sentence motion, which the court denied on June 9, 2020.
Patterson then filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He presents the
following issues for our consideration:
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2 On May 8, 2019, Patterson also filed a motion in limine seeking to exclude “any
reference at trial to a ‘black ski mask.’” Motion In Limine, 5/8/19. On August
19, 2019, the court granted that motion. Order, 8/19/19.
3 For reasons unknown to this Court, the case was transferred from Judge Ehrlich
to Judge Bronson for trial.
4 The Commonwealth nolle prossed the section 6106 and 6108 charges and
proceeded to trial only on the section 6105 offense.
5 Patterson was also held in contempt of court for his threatening behavior
towards the trial judge during his sentencing hearing. He was sentenced to a
term of 3-6 months’ incarceration for contempt. He has not appealed from that
sentence.
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(1) Did not the court err by failing to suppress evidence for each
of the following reasons:
(a) Where the officer arrived on the scene in a marked
patrol car with lights and siren activated, then
pursued [Patterson] down the street in his car, exited
his car with gun drawn, told [Patterson] to approach
the car, frisked [Patterson] on the hood of the car and
then questioned [him], was not [Patterson]
questioned while in custody without being given his
Miranda[6] warnings, and should not [Patterson’s]
statements have been suppressed, and
(b) Where [Patterson] was then placed in the back of a
police car which could not be opened from the inside,
was not [Patterson] under arrest in the absence of
probable cause, and was not the gun clip
subsequently obtained from the back of the police car
the product of that illegal arrest and/or the product
of forced abandonment due to that illegal arrest, and
should not that evidence have been suppressed?
(2) Did not the court err by allowing hearsay statements from
persons on the scene (to wit, that [Patterson] had a gun and
that [Patterson] pointed the gun at the security guard) to be
presented at trial during the testimony of the officer for each
of the following reasons:
(a) Where the Commonwealth established no exception for
the hearsay, was not the admission of this hearsay
improper, and
(b) Even if a portion of this hearsay was otherwise
admissible, was not the statement that [Patterson]
pointed the gun at the security guard more prejudicial
than probative pursuant to Pa.R.E. 403, under the
circumstances of the case and the sole charge at issue
at trial, and did not the court err by not excluding this
portion of the hearsay statements at trial?
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6 Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant’s Brief, at 4-5.7
In his first issue, Patterson argues that Officer Hurley frisked and
questioned him on the street without first giving him his Miranda warnings.
Moreover, Patterson claims that when he was placed in the back of a police
cruiser, he was effectively “under arrest in the absence of probable cause” and
any evidence recovered from the police car should have been suppressed
because it “was the product of an illegal arrest and/or the product of forced
abandonment due to that illegal arrest.” Appellant’s Brief, at 24.
Our standard of review on appeal of the denial of a motion to suppress is
to determine whether the certified record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions drawn
from those findings. Commonwealth v. Gould, 187 A.3d 927, 934 (Pa. Super.
2018). It is well-established that “[i]n making this determination, we are to
consider only evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the record as a whole,
remains uncontradicted.” Commonwealth v. Goodwin, 333 A.2d 892, 895
(Pa. 1975). If the record supports the factual findings of the suppression court,
we will reverse only if there is an error in the legal conclusions drawn from those
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7 In his post-sentence motion to reconsider his sentence, Patterson argued that
mitigating evidence militated in favor of reducing his sentence. See Post-
Sentence Motion to Reconsider Sentence, 2/18/20. While Patterson did not raise
either of his appellate issues in his post-sentence motion, it is well-established
that “any issue raised before or during trial is deemed preserved for appeal
whether or not the defendant chooses to raise the issue in a post-sentence
motion.” See Pa.R.Crim.P. 720, Comment.
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factual findings. Gould, supra at 934. Finally, the scope of review for a
suppression issue is limited to the record available to the suppression court. In
re L.J., 79 A.3d 1073, 1089 (Pa. 2013).
At the suppression hearing, Officer Hurley testified that it was standard
police protocol to arrive on the scene of a “Person with gun, priority 1” call with
lights and sirens activated. N.T. Suppression Hearing, 5/31/19, at 9. Moreover,
Officer Hurley testified, and the trial court found as a fact, that when he arrived
on the scene, within two minutes of the radio call, witnesses told the officer that
Patterson had just pointed a gun at a security guard. Id. at 6, 23, 42-43. In
addition, Officer Hurley testified that when he looked in the direction that the
witnesses had pointed, he noticed Patterson fit the physical description of the
individual described in the CAD. Id. at 21-23. At that point, where Officer
Hurley believed Patterson had just pointed a gun at someone, he had reasonable
suspicion to conduct an investigatory detention, stop Patterson with his gun
drawn, and briefly pat him down. See Commonwealth v. Dix, 207 A.3d 383,
388 (Pa. Super. 2019) (police had reasonable suspicion to stop and perform brief
pat-down search of defendant, with guns drawn, where officers observed suspect
fitting description from tip when they arrived at location).
Patterson claims that after Officer Hurley frisked him on the hood of the
car and then questioned him, he was subjected to a custodial interrogation
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without first being given his Miranda8 warnings, and, thus, his statements
should have been suppressed. We disagree.
A custodial interrogation occurs when there is a “questioning initiated by
the police after a person has been taken into custody or otherwise deprived of
his or her freedom of action in any significant way.” Commonwealth v.
Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006) (citations and emphasis
omitted). “There are two separate requirements, custody and interrogation, that
have to be found in order for Miranda to apply.” Commonwealth v.
Whitehead, 629 A.2d 142, 144 (Pa. Super. 1993). Additionally, in order to
determine whether the detention is investigative or custodial, a court considers
a variety of factors, including: (1) the basis for detention; (2) the duration of
detention; (3) the location of detention (public or private); (4) whether the
suspect was transported against his will (how far, why); (5) the method of
detention; (6) any show, threat or use of force; and (6) the investigative
methods used to confirm or dispel suspicions. Commonwealth v. Smith, 172
A.3d 26, 32 (Pa. Super. 2017) (citation omitted).
Here, Officer Hurley testified that when he stopped Patterson and asked
him to approach his vehicle, “[he] asked him if he had a gun” before patting him
down for the officer’s safety and then “[s]tarted talking to him [about] what
happened over there briefly.” N.T. Suppression Hearing, 5/31/19, at 10; Id. at
11-12 (“I just asked him what’s going on, why am I getting called here, etcetera.
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8 Miranda v. Arizona, 384 U.S. 436 (1966).
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As far as, like, what’s your side for the story.”). This initial inquiry was
permissible and did not require Miranda warnings. See Commonwealth v.
Kondash, 808 A.2d 943 (Pa. Super. 2002) (dictates of Miranda, even during
custodial interrogations, do not attach where police have reason to fear for their
well-being and ask questions to ensure their safety and not to elicit incriminating
responses); see also Miranda, supra at 477-78 (general on-the-scene
questioning as to facts surrounding crime or other general questioning in fact-
finding process does not present compelling atmosphere inherent in custodial
interrogation setting); Commonwealth v. Kloch, 327 A.3d 375, 380 (Pa.
Super. 1974) (same). Additionally, Officer Hurley had his gun holstered when
he asked Patterson these questions, he exhibited no threat of force towards
Patterson, Patterson was not restrained by the officer in any way, and the
questioning occurred in public during daylight. Smith, supra. Thus, we
conclude that, under a totality of the circumstances, Officer Hurley’s initial
questioning of Patterson in the present case was not a “custodial interrogation”
such that the officer was required to first administer Patterson his Miranda
warnings. Clinton, supra.Next, we do not find that when Officer Hurley placed Patterson in his police
cruiser that the investigative detention transformed into a custodial arrest, and
thus, required the suppression of all evidence seized thereafter.9
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9We find that the trial court credited the officer’s statement, that upon his arrival
at the scene, witnesses told him that Patterson had pointed a gun at the security
guard. Thus, under the facts of this case, we are not presented with an illegal
(Footnote Continued Next Page)
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In Commonwealth v. White, 516 A.2d 1211 (Pa. Super. 1986), our
Court held that defendants who were placed in a police cruiser for a short time,
pending investigation of a suspected robbery, were not arrested. Where the
defendants were detained at the scene of the initial encounter, were not
transported anywhere, and less than five minutes elapsed between the
defendants being placed in the police car and being told to exit, the defendants’
brief detention in police car was reasonable and did not “transform[] an
otherwise proper investigative detention into an illegal arrest.” Id. at 1217.
We find this case on all fours with White. Officer Hurley placed Patterson
in his cruiser for a brief period of time in order to investigate the matter further,
the encounter took place on a public street in the middle of the afternoon,
Patterson was not transported anywhere, the detention took place at the scene
of the initial encounter, and Patterson was not physically restrained or formally
placed under arrest. Under these circumstances, where Officer Hurley wished
to ensure his and any other officers’ safety while they continued to investigate
the CAD and statements by on-the-scene witnesses that Patterson possessed a
gun and pointed it at a security guard, we cannot say that Officer Hurley’s actions
were unreasonable. Cf. Commonwealth v. Turner, 772 A.2d 970, 972 (Pa.
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detention. Cf. Commonwealth v. Hicks, 208 A.3d 916, 951 (Pa. 2019) (where
officer clarified on cross-examination that information he was provided did not
suggest defendant “had ‘pointed’ [] handgun at anyone, or that he was
‘threatening somebody with it,’ but, instead, that ‘just somebody was holding a
gun, along that nature,” considering totality of circumstances, facts did “not
support finding of reasonable, articulable suspicion that [defendant] was
engaged in any manner of criminal activity”).
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Super. 2001) (en banc) (where inebriated defendant was placed involuntarily in
police car and subsequently asked incriminating questions without being given
Miranda warnings, Court concluded defendant could not be questioned without
first being given Miranda warnings because “the combination of uniformed
police officers placing a suspect in a police car for an unknown amount of time
and subsequently asking him potentially incriminating questions rises to the level
of a custodial interrogation”).10 Thus, because Patterson was the subject of an
investigative detention while he was inside the police cruiser, the gun magazine
discovered at his feet in the car was not the product of an “illegal arrest/or the
product of forced abandonment due to an illegal arrest,” Appellant’s Brief, at 4,
and suppression was not warranted. See Commonwealth v. Jones, 378 A.2d
835 (Pa. 1977) (“While we do not approve of the use of excessive restraints
upon a person subjected to investigative detentions, we note that every Terry
stop involves both a stop and a period of detention during which the suspect is
not free to leave but is subject to the control of the police officer.”).
In his final issue on appeal, Patterson contends that the trial court
improperly permitted Officer Hurley to testify regarding the “statements from
persons on the scene (to wit, that [Patterson] had a gun and that [he had]
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10 Although Officer Hurley did not specify how many minutes, in toto, Patterson
remained inside the police car, based on the fact that the officer returned to the
vehicle soon after placing Patterson in the car, noticing a gun holster on the
sidewalk near the car, and Patterson moving “furtively” in the car, we deduce
that he was in the vehicle for mere minutes. N.T. Suppression Hearing, 5/31/19,
at 11; see also id. at 45-46 (trial judge finding that Patterson “had been
stopped briefly, as part of investigation”) (emphasis added).
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pointed the gun at the security guard)” where those statements were
inadmissible hearsay that do not fit within any hearsay exception, and where its
admission was more prejudicial than probative. Appellant’s Brief, at 35.
Specifically, Patterson complains that the Commonwealth failed to provide
“independent corroborating evidence that the [witnesses] actually perceived the
event.” Pa.R.E. 803(1).
Instantly, the trial court permitted Officer Hurley to testify about the
witnesses’ statements pursuant to the present sense impression exception to
the rule against hearsay. At the motion in limine hearing, the court noted the
following:
You see somebody who just pointed a gun at someone who’s about
to run into the community, that’s not testimonial to say [“]that’s
him.[”] That’s not there to make a criminal case, that’s to protect
the public. And I think it would be extraordinary for a [c]ourt to find
something different under the circumstances. So if it happened
immediately after he’s still observable and they say to the police,
[“]That’s him,[”] do you have a case where that was done and they
said that that was not admissible? Where on the scene people are
pointing and saying, [“]That’s him.[”] Because I want to look at it.
I will. I’ll always look at the law. I don’t want to make a mistake.
But this does not sound like testimonial to me, so I don’t see a
Crawford[11] issue. It does sound like a present sense impression.
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11 Crawford v. Washington, 541 U.S. 36 (2004) (when prosecution seeks to
introduce “testimonial” out-of-court statement into evidence against criminal
defendant, Confrontation Clause of Sixth Amendment requires: (1) witness who
made statement is unavailable; and (2) defendant had prior opportunity to
cross-examine witness). Although Patterson raised a Crawford claim during his
argument on his motion in limine, Patterson has neither included it in his Rule
1925(b) statement nor argued it in his brief. N.T. Motion In Limine/Jury Trial,
8/20/19, at 16-17 (arguing that witnesses’ statements evolved from non-
testimonial to testimonial once threat to security guard had ceased). Thus, this
issue is abandoned for purposes of appellate review. See Pa.R.A.P.
1925(b)(3)(iv).
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They’re describing within moments something that they saw. That’s
the guy that just pointed a gun. Right? That’s what they would say,
that’s the man who pointed a gun?
* * *
I think it’s clearly a present sense impression. I don’t see a
Crawford issue. If your motion in limine is to exclude it, it’s denied.
I’m going to let it in. I’m going to let in what they said, because
they’re describing what they saw. That’s the guy I saw pointing the
gun; that’s the present sense impression.
I mean, like I said, if you have a case that says that’s not so, but
I’m familiar with the cases that you’re discussing. And this is not
like a 911 call. This is an observable person on the scene. Maybe
they didn’t get the name, but it’s not like an anonymous person. It’s
somebody that you know is on the scene. When you get a phone
call, it could be because the person in the house said to you, I just
looked out the window and saw this, so you’re giving complete
hearsay.
But this is inherently more reliable when you have somebody who’s
on the scene [in] the presence of the person who allegedly had the
gun. It’s much more reliable circumstances. The timing is such that,
you know, present sense impression, we’ve had them go out to a lot
longer period of time and that’s somebody describing what they just
saw. It seems to be multiple corroboration [sic], including the fact
that there are people who are[—]more than one person is saying it
and that the person is in their presence right there and then it
happened right afterwards.
And I can’t imagine that this would be considered to be testimonial
when somebody is making off with a gun into the community, and
it’s exactly what the [c]ourts have said is not considered to be
testimonial. It’s the police responding to an emergency. It’s
different than the cases that you’re quoting. So that’s my ruling.
N.T. Motion In Limine/Jury Trial, 8/20/19, at 17-18, 21-22 (italics added).
“An appellate court’s standard of review of a trial court’s evidentiary
rulings[,] which include rulings on the admission of hearsay[,] is [for an] abuse
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of discretion.”12 Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super.
2020) (citation omitted). “However, whether a defendant has been denied his
right to confront a witness under the Confrontation Clause of the Sixth
Amendment to the United States Constitution, made applicable to the States via
the Fourteenth Amendment, is a question of law, for which the [S]uperior
[C]ourt’s standard of review is de novo and its scope of review is plenary.” Id.Hearsay is an out-of-court statement offered for the truth of the matter
asserted. See Pa.R.E. 802. Generally, hearsay is inadmissible unless it falls
within one of the exceptions to the hearsay rule. Commonwealth Sandusky,
203 A.3d 1033, 1054 (Pa. Super. 2019) (citations omitted). One such hearsay
exception is the present sense impression under Pa.R.E. 803(1). Pursuant to
Rule 803(1), “[a] statement describing or explaining an event or condition, made
while or immediately after the declarant perceived it[,]” is “not excluded by the
hearsay rule, regardless of whether the declarant is available as a witness.”
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12 Evidence is admissible if it is relevant—that is, if it tends to establish a material
fact, makes a fact at issue more or less probable, or supports a reasonable
inference supporting a material fact—and its probative value outweighs the
likelihood of unfair prejudice. Commonwealth v. Clemons, 200 A.3d 441, 474
(Pa. 2019) (citations omitted). Where the information that Patterson allegedly
pointed a gun at a security guard creates the reasonable suspicion needed to
conduct the instant investigatory detention, see Hicks, supra, such relevant
evidence was clearly more probative than prejudicial where it was directly
relevant to determining who in the area possessed a firearm. See Pa.R.E. 403
(court may exclude relevant evidence if probative value outweighed by danger
of prejudice); see also Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.
2014) (court not required to “sanitize the trial and eliminate all unpleasant facts
from the jury’s consideration” where facts are relevant to issues and form part
of history and development of events and offense for which defendant charged).
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Pa.R.E. 803(1). “When the declarant is unidentified, the proponent shall show
by independent corroborating evidence that the declarant actually perceived the
event or condition.” Id.Patterson claims that there was no corroborative evidence showing that
the witnesses “actually perceived the event,” and, thus, the statements were not
present sense impressions. We disagree. Here, Officer Hurley testified, and the
trial court found as a fact, that he arrived on the scene no more than two minutes
after receiving the CAD dispatch. N.T. Suppression Hearing, 5/31/19, at 21.
Immediately upon his arrival, Officer Hurley came upon three witnesses—two
women and a uniformed security guard—who pointed in Patterson’s direction
and told the officer that Patterson had just pointed a gun at the security guard.
Id. at 6, 10. Officer Hurley then saw Patterson just down the street and
proceeded to investigate.
Under such circumstances, especially where the trial court credited Officer
Hurley’s account upon arriving at the scene, we find that the prosecution
showed, by independent corroborating evidence, that the witnesses “actually
perceived the event.” Commonwealth v. Cunningham, 805 A.2d 566, 573
(Pa. Super. 2002) (for purposes of present sense impression, “[t]he observation
must be made at the time of the event or so shortly thereafter that it is unlikely
that the declarant had the opportunity to form the purpose of misstating his
observation”) (citations omitted). Moreover, as the Commonwealth points out
in its brief, Patterson, himself, also provided corroborating evidence when he
told Officer Hurley that he had been in an altercation with the security guard at
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the treatment center. N.T. Suppression Hearing, 5/31/19, at 12. Despite the
fact that Patterson, for obvious reasons, did not tell Officer Hurley that he
threatened the guard with a gun, his information corroborates that witnesses
saw him in a dispute with the security guard at the relevant time period.
Accordingly, we conclude that the trial court did not abuse its discretion in
permitting Officer Hurley to testify regarding the witnesses’ statements where
they qualify as present sense impressions.13 Rivera, supra.
Judgment of sentence affirmed.
Judge McLaughlin joins this Memorandum.
Judge Bowes concurs in the result.
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13 Alternatively, the witnesses’ statements, via Officer Hurley’s testimony, could
be admitted as a way to explain the officer’s course of conduct in pursing
Patterson, frisking him and detaining him during the investigatory detention.
Commonwealth v. Dent, 837 A.2d 571, 579 (Pa. Super. 2003) (“It is . . . well[-
]established that certain out-of-court statements offered to explain a course of
police conduct are admissible. Such statements do not constitute hearsay since
they are not offered for the truth of the matters asserted; rather, they are
offered merely to show the information upon which the police acted.”). See
also Commonwealth v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016)
(“According to the ‘right-for-any-reason’ doctrine, appellate courts are not
limited by the specific grounds raised by the parties or invoked by the court
under review, but may affirm for any valid reason appearing as of record.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2021
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