Com. v. Stanford, O.

J-S73037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORLANDO STANFORD :
:
Appellant : No. 789 WDA 2018

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.: FILED DECEMBER 28, 2018

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
J-S73037-18

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].

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J-S73037-18

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]

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J-S73037-18

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[1] 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
____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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J-S73037-18

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

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J-S73037-18

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,

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J-S73037-18

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

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J-S73037-18

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

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J-S73037-18

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.

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.

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J-S73037-18

Trial Court Opinion, 5/14/18, at 5-14 (internal citations and some internal

capitalization omitted).

The jury found Appellant guilty of persons not to possess firearms and

firearms not to be carried without a license;2 on January 23, 2018, the trial

court sentenced Appellant to serve an aggregate term of four to ten years in

prison.

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?

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)]?

Appellant’s Brief at 3 (some internal capitalization omitted).

____________________________________________

2 18 Pa.C.S.A. § 6105(a)(1) and 6106(a)(1), respectively.

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J-S73037-18

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.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2018

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 Circulated 12/18/2018 03:18 PM

IN THE COURT OF COlVIMON PLEAS OF WESTMORELAND COUNTY,
:PENNSYLVANIA- CR!J.'1INA.I., DIVISION

COMMONWEALTH OF'.PENNSYLVANIA )
)
v. ) No. 3058 C 2015
)
ORLM:'TIO
. .DEAN
. STANFORD
. . . ' )

OPINION AND ORDER OF COURT

The above-captioned case is before this Court for disposition of Defendant's Post-
Sentence Motions filed pursuant to Pennsylvania.Rules of Criminal Procedure 720(8).
Defendant presented the following claims in his Post-Sentence Motions:

a. The jury's verdict was not based on sufficient evidence given the evidence presented
at trial;
b. The-jury's verdict was against the weight of the evidence presented at trial;
c. The Court of Common Pleas erred In denying Defendant's pro se Su.ppression Motion
as the arresting.officers lacked. the requisite probable cause to pursue the Defendant
based on an anonymous tip;
d. · The Court ofCommon Pleas erred in denying the Defendant's Motion in Limine
regarding the testimony of Amber Lovelace, whose: hearsay testimony was presented
to the Jury during trial; · · · · ·
e. The Court of Common Pleas erred in overruling the Defendant's objection to the
Commonwealth's use ofa peremptory strike en Juror #21, who Was excluded on the.
basis ofrace in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

Defendant's Post-Sentence Motions, March 6, 2018; at 2;

FACTS

Defendant was charged with the follO\.ving crimes ln D�cemberof2014:

Count l: Person Not to Possess use ETC Firearm; in violation ofl 8 Pa. C;S.A.
. . 6105(c)(2); ·
Count 2: Firearms Not to be Carried without a License, in violation of 18 Pa, C:S .A.
· 6106(a)(l} · · · ·

1

·---------
 An Omnibus Pre'."Trial motion Hearing occurred before the Honorable Richard E.
McCormick, Jr., oh October 24, 2016. Omnibus Pre-Trial Motion Hearing, October 24, 2016:1
Defendant's Omnibus Pre-TrielMotions consisted of a Motion to Dismiss Pursuant to Rule 600�
Motion for.Discovery, Motion to. Suppress Evidence and Out-of-Court Statements,. and Motion
in Limine, Omnibus.Pretrial Motions, August 29, 2016, at2. 4, 6, 11. Atthe hearing, the
Commonwealth presented the testiinony'of'Sergeant'Daniel Uncapher.NiH. at 4. Judge
McCormick denied Defendant's Motion to Dismiss Pursuant to Rule 600 and his Motion to
Quash, which was filed after Defendant's Omnibus Pre"Trial Motions on October 12, 2016. N .H.
at 40. Discovery was previously provided to Defendant, and his, Motion in Limine was held for
tr,ial.N�H. at45"46.Reg�ding Defendant's.Motion to Suppress, Judge McCormic.kfound that
Defendant's statements to Sergeant Uncapher were voluntary under the circumstances and his
Motion to Suppress.those statements Was denied. N.H.at40·A3. Additionally, Judge McCormick
indicated the following in reference to statementsmadeby-an anonymous caller:

TIIE COURT: The only thing that [Officer Uncapher]determined bythat is that they
believe that you had ,1 warrant against you. Through the independent sources, he
determined that there was a warrant; a lawful, outstanding warrant, and he. proceeded on
that

So that motion is denied. Your motion to 'suppress is denied.

The anonymous. call led him to further his investigation. That's all that he can do.

It.was a call to 911 that caused them to determine that there was, iii fact, an arrest warrant
out there that had been issued by the Board of Probation and Parole. They had
independent.infcnaation that, in .fact, it was a lawful warrant.

I
To .decrease the length of each citation, the notes of testimony at the. hearing will hereafter be
referred to as "N�H." The Omnibus Pre-Trial Motion Hearing in this matter occurred on October
24,2016;
2
 ,·.

N.H. at 44.. 45, 47. Judge McConcick ultimately denied Defon®.11t's Motion to Suppress the
state.tnents made by the anonymous caller. N.T. at 43-45.
Defendant's prose Motion inLimine was denied by this Court on September 29; 2()17 1

since his Motion was untimely and he was represented by counsel. Ajury trial occurred on
Defendant', s case from October 2, 2017 to Qcio ber· 3, 2017; Jury Trial Proceedings; October 2-,.3,
2017 ;2 Prior to the commencement of trial, both parties met in. chambers to discuss preliminary
matters with the Court. N.T. at 3. Attorney .James Robinson discussed Defendant' s.pro se Motion
inlimine thatwas denied. N:t. at 3. He indicated that.Defendant was previously told by Judge
McComiick in court thathe could present his Motion in Limine on the date of trial. N.T. at 3.
Attorney Robinson stated that.he did nothave a Motion in Limine to file in this case. N:T. atS,
He additionally stated the following:

[Defendantjappears in his motion in Limine to be raising the issue of hearsay, that there's
testimonial.hearsay that is going to come in that is. inadmissible.. 1 went through this file
and I am of the conclusion that the .hearsay that! think he's speaking of is an Amber
Lovelace who consented to allow the police into her residence. I know that .duringjury
trials that the jury is allowed to hear certain background information in a case, and I think
if the officer takes the stand and testifies that upon going to the apartment.thatMiss
Lovelace-isthetenantallowed entry, that's fine..If I'm wrong, somebody CM tell me.
But Lthink that's background information. Otherwise.d would object. But 1 don't want to
make meritless obiections during the trial. ..

N:T, at 3-4, ltliti�ly, this Court was mistaken as tothe date of filing ofDefendant's Motion in
Limine for trial. N. T. at 4-:6, Nevertheless, this Court stated:

an.
So the motion we're t.a).king aboutis a combination of omnibus pretrial motion and a
motion in Limine. The reason behind denying the motion. in Limine. is because Mr.
Stanford had counsel, J believe ifs Mr. Robinson that should make any appropriate
motions in Limine. I wasn't denying it substantively, I wanted to leave counsel with.any
motions in Limine.

And further, ifhe's raising this issue as to hearsay and. this background asto why or how
the police got into the apartment that day,! thinJ( that would be not offered for the truth
ofthe matter, other than just to .say why the police were there.

2
To decrease the length of each citation, the' notes of testimony at trial will hereafter be referred
to as "N.T." The.Jury Trial Proceedings in this matter occurred from October 2, 2017 to October
3,2017.
3

---·---·-··------- ·--------------------------·-----
·
N.T.at 5. AttomeyRobinson then responded:

Right. And I thirik the other issue he would raise is that he would clain; that the
anonymoustip which.was called in is inadmissible.hearsay, My experience has been that
ifthat,sjustbeing offeredfor background information; that such testimonyis permitted.
Had he been charged With otheroffenses in conjunction with the firearm ch::u-ges.- he's
only charged with felon in possession of a.firearm and carrying a firearm without a
license. Hae! there been other charges filed along with this case, i probably would have
filed a motion for bifurcated trial, But I r�1ly have no. motions in Limine, Judge;

N .T. at 5. This Court ultimately amended i4'l order to deny Defendant's Motion in.Limtne only.
N.T.at.6.
Jury selection began on October 2, 2017. During jury selection, each of the jurors were
individually interviewed in a separate room regarding their juror questionnaire. Bofh parties were
present during the. interview. For purposes of Defendant's Post-Sentence Motions, Juror Number
21 was individually interviewed regarding his juror questionnaire. Jury Selection Proceedings,
October 2, 2017, · at2-6. He indicated in his. questionnaire thatsomeone close to him was the
victim of a crime. Id at 2. Specifically, his mother was involved in a domestic Incident which
resulted in his presence in court. Id. Juror Number 21 did not feel that there was anything about
1

this. incident which caused him to have such strong feelings that he could not be fair in the
criminal trial. Id .at 2-3; 1-!e believed that he could keep the situation completely separate from the
criminal trial, Id at 3. Juror Number 21 also indicated 'in.his questionnaire that someone close to
him was charged With a crime. Id at 3. Specifically, his sibling was charged with rape and the
case proceeded to trial; Id. Juror Number 21 did not participate in those proceedings. Id. His
sibling was ultimately incarcerated at the conclusion of the-trial. lg. Juror Number 21 maintained
that there was uothlng about the case, including how it was handled by law enforcement or
within the courtsystem, which caused him to have really strong feelings to the point where he
could not be fair during triaLld at .3-4. He felt that he could keep the situation completely
separate from the criminal.trial. Id at 4, Additionally, Juror Number21 indicated in his
questionnaire that someone close to him was ail· eyewitnessto a crime. Id. His answer pertained
to. the same domestic incident thl:l,t he had previously discussed, Id'.
Upon the conclusion of Juror Number 21 's interview, the Commonwealth exercised a
peremptory challenge. Id. Defense Counsel requested that the Commonwealth provide its

4
 reasons forthe peremptory challenge on the record due to the facttbat Juror 21 is
African/American.. Id at4-S. The Commonwealth responded witbthefollowing:

YourHonor, ldon't believe that the case lawsupports a requirementthatI suggest
reasons at this stage because I don't believe one peremptory based upon an ·
African/American person establishes a Batson argument. I would note we permitted
another African/American on the juryjust a few moments ago.

Id� Defense Counsel was then asked to provide the basis for hls·requ.est Id. Defense Counsel
stated:

Well, the basis.Your Honer, is with the defendant beingAfrican/American, my client
wishes to have a jury of hispeere to the fullest extent possible. I just wanted the.
Commonwealth to clarify its basis for or to establish.that there isn 'ta racially motivated
reason for making the strike, Your Honor; ··

Id. Defense Counsel W�J;s, unaware of any case law or statutes in support ofhis request. Id. In.
response, this Court stated:

I don't believe that'there's any sort of violation, especially in that we already have at least
one.juror rightnow who is an African/American. So; I am g(}ing to permit.this juror to be
stricken pursuant to the Commonwealth's peremptory Number 3 ..

Id atS-6. The remalning.jurors were thereafter selected for Defendant's trial.
Trial commenced following jury selection on October 2, 2017. The Commonwealth first
presented the testimony ofSergeant Uncapher.ltT. at 43. Atthetime of trial, Sergeant
Uncapherwas employed by the Allegheny Township Police· Department, N.T. a.t 44. He worked
for thepolice department for twenty-four (74) yearaN'T, at 44. Sergeant Uncepherworkedas a
patrolman at the time of the incident.in 2014. N.T; at 44. He spent the majority of his time
working "on the road" rather thanat the station. NiT. at44. Sergea,nt Uncapher's duties as a
patrolman included accident investigation, general investigation, patrol operations, and
answeringcalls for service. N.T .. at44. In addition> he would assist local police departments upon
request. N�T� at44-.45. He also assisted other agencies in the past with the service of arrest
warrants. N.!. at 44:.45. Sergeant Uncapher testified that, in addition to receiving the written

5

-----..----------·-----------------------------------
warrant, he can verify the validity of a warrant by contacting Westmoreland County91 L N .T. at
4.5. Westmoreland County 911 will confirm or denythe warrant by running anNCIC search of
the individual's name. N.T. at45.
On December 21,.2014, SergeantUncapher was dispatched by Westmoreland County
911 to the Sandalwood apartment complex (hereinafter "Sandalwood"), N;T. a:t46. The)'
received an anonymous tip that Defendant was located at.Sandalwood andthere was.anactive
warrant forhis arrest. N.T. at 46, 61. Sergeant Uncapher was also informed that Defendant was
potentially armed with a weapon. N. T. at 46, 61. He confirmed that there was an active warrant
for Defendant's arrestthroughWestmorelandCount 911. N.T. at 46. Westmoreland CountPl l
advised Sergeant Uncapher that there was an active warrant for Defendant.out of Pennsylvania
State Parole. N.T. at 46. He was notaware of Defendant prior to this incident, N.T. a:t45-46. He
believed that the apartment was rented by Amber Lovelace, but he did not know this information
prior to serving the warrant. N. T. at4 7. Sergeant Uncapher requested assistance from Officer
Hosack.in.servingthe warrant. N.T. a.t 47.At the time oftrial, Officer'Hosack-was no longer
employed by the Allegheny Township Police Department. N�T; at 61.
SergeantUncapher testified that he was familiar with Sandalwood as a police officer,
N.T.. at 47. J�Ie described Sandalwood as a row of five (5),.tw.o-st.ory apartments with a
downstairs living and kitchen area and upstairs bedrooms and arestroom. N.T at48. Upon ·
e ,

arrival to.Sandalwood, Sergeant Uncapher reported directly to the apartment in which Defendant
was allegedly present. N .T. at 4 7. He observed that the front door of the apartment was open and
approximately.five (5) to ten (10) individuals were located throughout the firstfloor, N.T, at 48,
62.. 63. Sergeant Uncapher announced his presence tcthe.individuals and Lovelace immediately
approached.the door. N.T. a\ 4� ..He was notfamiliar with.Lovelace prior to serving the warrant
N.T. at 48. Sergeant Uncapher testified that Lovelace was "very friendly" and she did notobject
to him being ather home. Nff. at 48. He asked for permission. from Lovelace to enter the home.
N:T. at 49.� She confirmed that Defendant was in the apartment and was located in the upstairs
bedroom. N.T. at 49. Sergeant Uncapher did ncrattemprto speak with the other individuals in
the apartment because it was "so loud." and there were "so many people there." N;T. at 63 .. He
maintained that hewss riot familiar with Defendant priorto this incident and. he did not.receive
anythingthat.would allowhim to identify Defendant N.T. at 49.

6
 Officer Hosack subsequently approached Sergeant Uncapher and Lovelace from the back
· door of the apartment. N. T. at SO. Sergeant Uncapher and Officer Hosack reported to the upstairs
bedroom. N.T. at 50. In the bedroom; they observed a male lying ona bed Where Defendant was
reportedly located. N;T., at 50. Tli.�individiuµ was lateridentified as Defendant. N.T. at 51.
Defendant was the only individuallocated in the. bedroom. N.T. at 71. Sergeant Uncapher
testified thatthey shouted for Defendant andannounced theirpresence, but Defendantdid not.
respond. N.T. at 50. Sergeant Uncapher assumed Defendant was sleeping. N.T. at 65. Sergeant
Uncapher and Officer Hosack subsequently began handcuffing Defendant aiid he woke up. N.T.
at 51. Sergeant Uncapher explained who they were to Defendant and why they were there. N.T.
at 51. He testified that Defendant was.dressed in a tank top and a pair of dark colored] eans that
day. N.T; at 51.
Sergeant.Uncapher searched Defendant and Officer Hosack maintained control of
Defendant during the search'. N.T. at 51.:52.·Sergeant Uncapher could not recall if Defendant was
sitting or standing during the, search. N.T. at66.;67. He testified, however, that an individual is
generally standing when he conducts a search. N:T. at 66,. 67. Defendant did not present any
problems during the search. N.T.at52. Officer Hosackindicated that a weapon was present.in
Defendant's "crotcharea" and officer Hosack retrieved.an automatic pistol fromthis area. N.T:
at 52. Sergeant Uncapher subsequently "cleated" the firearm .. N .T; at 53. He testified that
"clearing" the firearm consists of emptyingthe firearm's magazine.andunchamber-of any
rounds. N.T. at 53. H'.e. did not discover anyroundsin the firearm's chamber; but he did recover
eight (8) rounds in the fireerm's magazine. N .T; at 53. Sergeant Uncapher described the firearm.
as anine-millimeter Taurus.PT24/7. N.T.at53. After Sergeant Uncapher cleared the. weapon, he
returned to his station. N. T .. at St He entered the firearm into evidence and placed it into an
evidence.locker, N.T. at 54. The.firearm was also submitted to the.Crime Lab; N.T:at 57 .. The
bullets were eventually destroyed in accordance with. the department's policy against retaining
ammunition. N.J, at 71-72.
Sergeant Uncapher contacted Pennsylvania State Parole and advised them that-Defendant
was in custody, N :T. at57. Defendant was transported backto the. Allegheny Township Police
Departmentand was taken to the.processing room and holding cell. N:T. at 58. Sergeant,
Uncapher testified that Defendant requested to speak withhim.while he was entering charges and
evidence. N ;T. at. 58. More specifically, Defendant was willing to speak with him if.it "helps him

7
out" N .T. at 58. Sergeant Uncapherread Detendant.his Miranda rights, which are generally read.
from a departmental form. N;T. at59, 72 .. Defendant indicated that he still wished to speak with
Sergeant Uncapher. N.T. at 59. Defendant allegedly told Sergeant Uncapher that he was aware
that he was a felon and was not.to possess a firearm. N.T. at 59; Defendant also stated that he
was at the apartment on the night priot to the incident and was "hanging out'� with Lovelace.
N.T. at 59. At one point, Defendant supposedly met arnalewhowas knownas ••Jay.';N;T, at 59;
Defendant allegedly purchased marijuana from Jay the night before and Jay possessed the
fireemrthatwas subsequently found on Defendant. N.T. at 59. Sergeant Uncapher testified that
Defendant agreed to hold the weapon for Jay and hefell asleep with it in his pants, N.t. at 6().
Sergeant Uncapher was not aware if Jay was present at the apartment on the date ofthe incident.
N.T. at 63-64.
Sergeant.Uncapher subsequentlyprepared a police report of the incident. N.t. at 69, He
did not obtain a written statement from Defendant and did not provide a specific reason as to
why he did not take a written statement, :tq;T. at 69-70, He did, however, state that Defendant did
not provide much information to him aside from the name "Jay." N .T. at 70. Sergeant Uncapher
asked questions to the other residents of Sandalwood regarding Jay, butno one could confirmhis
i.dentity. N. T. � 70. Additionally, he identified "Cade Kennemuth" as the last registered owner
of the firearm found on Defendant. N .T. at 73..
The Commonwealth thereafter presentedthetestitnony ofOfficer Seth Hosack. N.T: at.
73-74. At the time oftrial, Officer Hosack was employed by the New Kensington Police
Department-as a police officer. N.T. at 74, He worked as a police. officer for thirteen (l3) years.
N.T. af74. On the date of the incident, OfficerHosack was employed by the Allegheny
Township Police Department.as a patrolman, N:T'. at 74. Officer Hosack testified that he
received information that a wanted individual was armed.at Sandalwood. N.T. at 74-75. Officer
Hcisackarid.Serg�anJUncapherteported to Sandalwood. N.T. at75.. Upon their arrival, Sergeant
Uncapher traveled to the front.and Officer Hosack we11t to the back. oftb,e residence. N:T. at 7 5.
He testified that the back door of the apartment was open. N .T. at 75. At. one point, Officer
Hosack observed Sergeant Uncapher speaking withLovelace, N.T. at 75 .. He testified that
Lovelace did not .appear to be agitated with their presence and the individuals at the apartment
were'very nice.', N.T. at 75. Lovelace allegedly.indicatedthat Defendant.was upstairs in the
bedroom. N.T. at 76.

8
 Officer Hosack and Sergeant Uacapheu proceeded to the tips1:ai.rs bedroom of the
apartment, N.T. at 76; Officer Hosack testified thatan individual appeared to be sleeping in the
bedroom. N. T, at 7 6. This individual was lateridentified as Defendant, N. T, at 7 6-77. Officer
Hosack holstered. his weapon and held hisTaser to protect Sergeant Uncapher as he .apprehended
Defendant.. N. T. at 7 6. 'Officer Hosack thereafter searched Defendant while he was secured in
handcuffs and lying on the bed. 1'1:T, at 76:-77. He couldnot recall the direction in which
Defendant was lying. N.T. at 80.,.81. Officer Hosack testified thathe reached near Defendanfs
"crotch area" and felt what he believed to be a.firearm based.on its shape, size, and density .. N.T;
at76�77. He announced the presence of the weapon while searching Defendant and retrieved a
firearm with "some difficulty." N.T. at 76:.11. Officer Hosack. testified that Defendant was
wearingmultiple layers of clothing and the firearm was found in the frontflap of Defendant's
longunderwear.N.T. at 77-78, 8L Officer Hosack gave Sergeant Uncapher the weapon while he.
secured Defendant, N.T; at 78, Sergeant Uncapher "cleared" the weapon. N.t. at 78. They
subsequently proceeded to the police. station. N.T. at 78; Sergeant Uncapher filed Defendant's
charges, N. T. at 78. Officer Hosack was not present for any statements made by Defendant. at the
police station .and he did not participate in the. investigation. ofDefendant's case. N.T, at 78-.7.9,
81. He was also not aware of any fingerprint evidence that may have been'recevered from the
firearm. N.T. at 81-:82.
Sergeant Uncapher was thereafter called again by the Commonwealth to testify. N .T. at
82�84; The Commonwealthrequested the opportunity to brieflyquestion Sergeant Uncapher in
response to. questions asked by Defense Counsel regarding fingerprint or DNA evidence on the
firearm. N:T. at82,-84, Sergeant Uncapher was familiar with the availability of'fingerprint and
DNA testing at the State Police Crime Lab in Greensburg. N. T. at 85. He testified that these tests
maybe costlydependingonthe number of'teststhat arerequired. N;T. at 85 •. SergeantUncapher
does not generally consider this in determiningwhether to submit items for fingerprint or.DNA
· testing; unless there is a. subsequent AFI.S bit on a ballistics cartridge. N .T; at85. He testified that
it is. notcommon to. submit items that are found 011 a person' S body for fingerprin; or DNA
testing. N.T. at 8.5. Sergeant Uncapher was not.aware of the exactnumber that it would havecost
to perform testing in the instant case. N.T. at86.. He estimated, however, that the cost to perform
testing could have. been "in the thousands." N.T; at 86 .. Sergeant Uncapher testified that, to his

9

·-----..··-····--- -------------------------------------
knowledge, the firearm that was found.on'Defendantwas never testedforfingerprints.N'I'. at
86.
Upon the conclusion of the Commonwealth's case, Defense Counsel moved for a
judgment of acquittal with.respect to bothofDefendaiit'schar$eS. NJ'.'. .at 92. He argued that the
case began with an. anonymous tip andthe testimony of Lovelace and the individual who. made
the anonymous tip were not presented by the Commonwealth in this case. N.T. at92-93. Defense.
Counsel maintained that the Commonwealth provided the testimony of the officers only, w�o
indicated that Defendant hada firearm, N.1'. at 92-93. Ultimately, he claimed that the
Commonwealth was unable to establish that Defendant had the intent to possess, control, or use
or carry a firearm. N ..T. �t 93. Defense.Counselreiterated that Defendant was sleeping in the bed
and allegedly had the firearm on his person. N;T, at 93. He averred that insufficient evidence was
presented to establish that.Defendant had the requisite intent for these charges to be submitted to
the jury. N;T. at 93. Furthermore.he restated that the gun was never processed for printsor DNA
evidence. N.T. at 93. Defense Counsel's Motion was noted for the record and denied. N.T. at 93..
This Court found that.there was sufficientevidence for: the charges to be sent to the jury; N. .T. at
93.
Defendant additionally testified at trial regarding the incident.N .T; at 95-96. On the date
prior
.
to Defendant's arrest). he travelled to Lovelace's apartmentat Sandalwood, N.T; at 96'-98.
He identified Lovelace as his friend, Defendant stated that he knew Lovelace for about a month
and SergeantUncapher's statement thathe knew her for approximately two (2) weekswas
incorrect. N .T .. at 97, 11 7� Defendant testified that there were about four (4) to five (5) other
..
individuals present atLovelace' s apartment. N.TA�t97. He was not familiar with all of the
individuals, N; T. at .98. He did recall.however, that one of'the individuals was named Zach
Ferguson. N.T. at 98. At the aparfment, they were "smoking, hanging out, laughing, watching
videos, [and] movies," N:T. at 98. Ataround 1 :00 or 2:00 a.m., Defendant fellasleep in the
upstairs masterbedroom of the apartment. N.T. at 97: He did not recall informing Sergeant
Uncapher thathe fell asleep atapproximately4:00 a.m. and indicated that his statementwas
incorrect. N.T'. at 113. Defendant testified that there.were two (2) bedrooms located in the
apartment; N:T. at 99. Additionally, t10 one else was present in the bedroom. with Defendant
when he went to sleep; however, several other individuals were still present inthe apartment at
the time he went.to sleep and they were mostly downstairs. N.T; at 99 •

.10
 Defendant woke upfrom stewing while he was being handcuffed. N .T. at 99- 100. He
testified thathe heard the officer announce his presence and request Defendant's identity. N. T. at
1.00. Defendant announced his identity to the officer. N..T. at 100. Defendant denied obtaining a
firearm from anyone and testified that a firearm was not located on his person at the time he went
tosleep. N. T. at �.oo. Defendant also claimed tll.atbe.neve,r observed the firearm that he was
·charged with possessing. N;T, at fOO. He testified that he did hot know that he had an active
warrant outfor his arrest due to missing a parole appointment. N .I. at 100-1 or. Defendant was .
.searched while he was being handcuffed. N .T .. at l 02. He testified thathe was lying on his. right
shoulder during the searchand the officer helped him get out of bed, N.T. at 102. Additionally,
he testified that-Sergeant Uncapher's statement as to what he was wearing was incorrect and he
was not.wearing long underwear orjeanswhen he woke up .. N.J! at 1.02,.115-116.He also stated
thathe was not wearing gym shorts. N:T� at l15. Rather, Defendantclaimed thathe was dressed
ina white tank top, boxers, and socks at.the time he was handcuffed; N.T. at l01-l02. He
testified that he asked to put on his pants and shoes after he was handcuffed and the .officers
permitted him to do so.N�T. at 101, 114-11,S. He also stated that one of the officers assisted him.
with putting additional clothing on. N,T. at 101,.114. Additionally.Defendant put onlong jobns.
N. T. at. 114-115 -. Defendant also testlfied that he was searched by the officers after he was
permitted to put on his additional.clothing. N. T. at U 4. He also did not.recall seeing anyone else.
arrested at theapartment.N,'I'. at 118.
Defendant recalls signing .·f:\ document entitled "Consti tutional Rights" on the date· of the
focident that was prepared by Sergeant Uncapher, N.T, at l03- lQ4. Defendant testified that he.
was located in the Allegheny Township Police Department holding eel, while. signing the
document N.T; at 104. The document informed Defendant.of his rights and included a statement
providing that the officer.read Defendanthis rights and Defendant understood what his rights·
were; N. T. at. l 04; U 1. Additionally; it provided that.Defendant was willing to make a statement
and answerthe questions asked of'him. N:T. at ll l. It.also stated that Defendant did not wish to
have a. lawyer present, N,T; at 11 L The document further indicated that no promises or threats
· had been made to induce Defendant to make a statement and no pressure or coercion of any kind
had been used against him. N.T .. at 111. Defendant spoke voluntarily with Sergeant Uncapher
after signing the document, N.T. at 105. Defendanttestified that Sergeant Uncapher asked himif
he was wilting to answer a, few questions and he agreed. N. T. at 1 OS. Defendant denied initiating

11

---·--·····-·--- ·---- ·-----------------------------------
 the conversation with Sergeant Uncapher and stating that he wouldlike to help himselfoutif he.
could. N :T. at 1 OS, 119. He-testified that. Sergeant Uncapher did not provide him with the option
to have his statement.written or recorded. N.T. at 119�120.
Defendanttestified that Sergeant Uncapher's partner was also present during his
questioning.N.T. atl20.DefendantallegecllytoldSergeantUncapherthat he was at Sandalwood·
for one (l)or two (2) days and he knew Lovelace, N.T. at 105. Defendant also informed
Ser&earit Uncapher that he thought Lovelace was a "good person" and they did not have a
romantic relationship. N.T. ·at 106, Additionally, Defendant told SergeantUncapherthathe knew
Lovelace for about a month. N.T. at 106. He testified that.he knewhe.had a warrant issued by
probation and parole due to missing a scheduled appointment with bis parole officer. N.T. at106.
Rte also informed Sergeant Uncapher that he had afew discrepancies with probation and parole
regarding working and missing appointments. N:T. at 106-107. Defendant was aware that hewas
not allowed to possess any firearms. N,T. at 107, 116. Defendant did not questionSergeant
Uncapher when he. was asked ifhe knewhewas not allowed to.possess a firearm. N.T. at 116 e•

Instead, Defendant stated that he was.not "worried about it" because he did not have anythingto
do·with;the·fiteatm, N;T. atl l6!Defeildant.de.nied having but he
assumed 'that the officer was referencing the firearm that Defendantobserved in the front seat of
the police vehicle. N! T. at 109. Defendant testified that he was handcuffed and. seated in the back
seS:t of the police vehicle, N:T. at.109::.110, Hewasableto observe the: firearm-although.there
was a glass partition separating the front and the back.seats, N.T. at 112�113. Defendant stated
th�t the firearm he observed was the same firearm that was presented in the courtroom during
trial. N. 'Lat. 110. This was allegedly the rrrst time Defendant had viewed the firearm. N .T. at
112. Defendant testified that he was not ccnoemed with the firearm because it was not found on
his person.N''Lat 109, 112. 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," N� T. at 116. Defendant
did not recall hearing anyone state the terms "gun," "weapon," or "firearm" in the apartment.
N.T. at.112 .. He also did not remember the officers. evermentioning.a firearmwhile they were in
the apartment and when he was awakened from his sleep. N. T.·at l 12, Defendant.testified that he
did not se.e any police officers carrying a gun O\:Jt of the house withhim. N.T. at 112. Overall;
Defendant believed that he was innocent of the charges that were filed against him. N. T. at 11 O.
Defendant was µltimately found guilty ofboth charges by the jury. Sentencing was
deferred and a Pre-Sentence Investigation was ordered. Sentencing occurred before this Court. oh
Jani.1aiy23f 2018. A.t Count 1, Defendant was sentenced to four (4) toten (10) years of
· incarceration: He Wa$ given credit for time served, from September 19, 2017 · to September 20,
2017 � and from October 3, 2017 and.up to the date of sentencing; Defendant was ordered to
undergo a mental health evaluation, follow recommended treatment, and pay costs, The.
cpµtr�band/firearm was to be seized, forfeited, and destroyed by the Pennsylvania State Police.
· Defendant's Motion for Extraordinary Relief was denied .. At Count 2, Defendant was sentenced
· to three (3) to seven (7) years .of state incarceration concurrent to Count 1, Defendant was
ordered not to possess any firearms. Defense Counsel' s Motion to Withdraw as Counsel was
granted.and AttorneyKenneth.Nogawas appointed ascounsel for.the purposes ofDefendant's
appeal. 'Defendant submitted a pro se Motion for Post-Sentence Reliefon January 23, 2018.
Defense Counsel was granted twenty (20) days to submit Amended Post-Sentence Motions to the
Court.. Defense Counsel's subsequent request-for an extension oftime.to file Amended Post-
Sentence Motions was granted. Defendant filed Amended Pest-Sentence Motions on March 6,

13
2018. Defendantwas ordered to submit a brief in support. of hi& Post-Sentence Motions within
thirty (30)days. The Commonwealth was orderedto file a briefinresponse withln thirty (30)
days upon receipt of Defendant's brief. Defendant filed a Brief in Support of Post-Sentence
Motions on AprilB, 2018. The Commonwealth's subsequent Motion for Continuance of Time to
File.. a Briefin Opposition to Defendants Post Sentence Motions was. granted. The
Commonwealth riled. a Briefin Opposltion.to.Defendant's Post-Sentence Motions on May 8,
2018.

STIPULATION

The parties stipulated to the following facts during trial:

· The parties stipulate.that Corporal Robert Hagins. of the Pennsylvania State Police Crime
Lab· is an expert ln the field of firearms operability and identification.. Corporal Hagins
would have testified that.he received the Taurus PT24 nine-millimeter handgun, TBS
61S11, andmagazinewhich were.admitted as Commonwealth's.ExhibitNumber L
Corporal Hagins would further testify that he test fired: the firearm using factory nine-
millimeter ammunifion and found it to function as designed, Further, the parties stipulate
that if called, Agent Martin Voj acek, of the Pennsylvania: Board of Probation and Parole
would testify that, atthe time of this incident, the defendanthad previously been
convicted of a felony violation of'the Controlled Substance, Drug, Device, and Cosmetic
Act. Further, Agent Vojacekwould testify that the Board of Probation and parole had
issued a warrantfor the arrest of Mr . Stanford which was valid and active on December
21, 2014. And further; the. parties stipulate that the defendant did not posses� a valid
lawfully issued lioenseto.carry a firearm onDecember 21,2()14.

N.'t.at88·.

DISCUSSION

I. Sufficiency of the Evidence

Defendant claims that the Verdict at all counts was not supported by sufficient evidence;
Def.ts Br. p.6; In Commonwealth v. Brown, the Pennsylvania Superior Court stated:

l4
 The standard we apply in reviewing the sufficiency of the evidence 'is whether viewing �11
the evidence admitted at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to firid every demerit qffhe crime.beyond a
reasonable doubt fu.applying the above test, we may not weigh the evidence and
substitute our j:udgibent forthefact-finder. In addition, we notethatthe facts and
circumstances established by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding.a defendant's guilt maybe reselved.bythe fact..finder
unless the evidence is so weak and inconclusive that as a matter oflaw no probability of
fact may be drawn from the combined circumstances. The Commonwealth may
sustain
its burden of proving every element of the crime beyond a reasonable dotib(by means of
wholly circumstantial evidence. Moreoyer,:in applying theabove test, the entire record.
must be evaluated and all evidence actually received must be considered. Finally; the trier
of'fact while passing upon the credibility of.witnesses and the weight of the.evidence
preduced.Jsfree tobelieve allparternone ofthe evidence.

Commonwealth v. Brown. 2.� A.3d 544, 559-560 (Pa.Super. Ct. 2011) (enbcinc) citing
Commonwealth v� Hutchinson, 947 A.2d 800, 805..,.0(i (Pa. Super. Ct. 2008), _gp_peal denied, 602.
Pa. 663, 98.0 A.2d 606 (2009) (quoting Commonwealth v. Androlewicz. 911 A.2d 162. 165 (Pa.
Super. Ct 2006)).
Defendant argues that there was insufficient evidence for the jury to find him. guilty .at
both counts. AtCount 1, Defendant wasfound guilty under the following statute:

(a) Offense (!dined.-

(1} .A person who. has been convicted. of an offense enumerate in subsection (b).
within or without this Commonwealth, regardless of the.Iengthofsentencaoe
whose conduct meets the criteria in subsection (c) shall not possess, use, control,
sel I, transfer; or manufacture or obtain a license to possess, use. control, sell,
transfer, or manufacture a firearm in.this Commonwealth.

to
(c) Other persons-c-In addition any person who has been convicted of any offense
listed under subsection (b), the.following persons shall be subject to the prohibition of
subsection (a);

(2) A person who has been convictedof an offense under the act of April 14, 1972
. (P.L. 233, No. 64); known as TheContrclledSubstance, Drug, Device.and
Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other
state.fhat may be punishable QY a: term.ofimprisonment exceeding two years.

15
18 Pa. C.S.A. § 6105(a), (c)(2),, At Count 2; Defendant was found gi,rilty under the following
statute:

(a) Offense.defined.-

(1) Except as provided in paragraph (2), any person who carries ci firearm in any
vehicle or any person who carries a firearm concealed on or about bis person,
except in his place efabode .or fixedplace of business, without a valid and
lawfully issuedlicense under this chapter commits a felony ofthe third degree.

18 Pa.C.S.A. § 6106(a)(l).
This Court finds that the jury was .presented with sufficient evidence during trial that
could lead them to believe that Defendant was guilty of both charges. The Commonw�altb.
introduced the firearm that was allegedly found on Defendant and its magazine as
Commonwealth'sExhibit Number.I. N.T, at 54, .88. The parties stipulated to several factsthat
were read to the jury. N.T. at &8. Specifically, the parties stipulated to the testimony of Corporal
Robert Hagins, who would have testified as to the characteristics of the firearm that was found
on Defendant. N.T. at 88. Additionally-theparties stipulated to thetestimony ofAgent Martin
Vojacek, who would have testified that Defendant had previously been convicted of a felony
violation of the Controlled Substance, Drug; Devicecand Cosmetic Act.N.T. at 88; The parties
also stipulated that the Board ofProbation and Parole had issued a warrant for Defendant's arrest
that was active on December 21, 2014,andDefendant did not possess a valid lawfully issued
license to carry a firearm on that date. N.T. at 88.
The Commonwealth presented the testimony of:Sergeant Uncapher and Officer Hosack.
Sergeant Uncapher stated that there was a warrant for Defendant's arrest from Pennsylvania
State Parole. N.T. at.46 •. Sergeant Uncapher and Officer Hosack testified that they reported to
Sandalwood and found Defendant sleeping in the upstairs bedroom in Lovelace, s apartment,
N.T. at47.;48, 50-51, 76-77. They both testified that Defendant was handcuffed arid searched.
N.T. at 51-52, 76-77; · Officer .Hosack allegedly indicated that a weapon was present in
Defendant's "crotch area" and he retrieved an automatic pistol from the front flap of the long
underwearthatDefendent was wearing. N;T. at 52, 76 ..77, 81. SergeantUncaphertestifiedthat
Defendant indicated he was willing to speak with him if.it would "help him out," N;T. at 58.
Defendant allegedly informed Sergeant Uncapher that he knew he was a felon and was not to
16
possess a firearm. N.T.at 59. Defendant also allegedly stated thatJaypossessed the firearm that
was found on him the.nightbefore and.Defendant agreed to "hold" the weapon for Jay; N.T. at
59-60. Defendant allegedly-told Sergeant Uncapher thathe fell asleep with the weapon in his
· pants. N.T. at 60; Sergeant Uncapher additionally provided reasons as to why fingerprint or DNA
evidence was not taken from.the firearm. N,T. at 82-86.
Defendant disagreed with the majority ofthe testimony presented by the Commonwealth
and Defendant testified that h� is innocent of'the charges.thatwere-filed agains; him. N.T. at 110.
The jury heard conflicting testimony as to what Defendant was wearing ob. the date of the
mcident. N�T. at 51, 77-78, 101-102, t15-116. Additionally, Defendant denied making the
alleged statements to Sergeant Uncapher.. N.t. at 105�109, 118 .. Defendant testifiedthathe did.
not initiate a conversation with Sergeant Uncapher while he was in the AlleghenyTownship
Police Department holding celLN.T; at 104�105, 119. Defendant claimed that a firearm was not
located on his person at the time he went to sleep and he never observed the firearm that hewas
charged with possessing tiritil after he was in custody in the police vehicle! N.T. at lOO, 109, 112,
117" l l8. The jury, however, was free to believe all OT none of'Defendant's.testimony.
Defendant-also argues.that the Commonwealth failed to introduce any.substantive
verification of the testimony presented and produced no physical evidence, Pef.;s Br. at5"'.6,
Specifically, Defendant argues that the Commonwealth failed to produce any recording or
transcripts of the anonymous call to 911 dispatchers and the Commonwealth failed tq call
Lovelace to verify her alleged statements. Def.' s BJ;. at 5. This Court agrees with the
Commonwealth that this evidence has "no healing on the question of whether the
Commonwealth submitted.sufficient evidence to thejury," Cc,:rnmw.'sBr. at Z .. Additionally,
Defendant argues that the testimony of the officers during trial contradicts earlier statements
made hy Sergeant Uncapher that he, rather than Officer Hosack, searched Defendant. Def.'s Br.
at 2 n.l, 6. This fact, however, is notdispositive.
Viewing .all of the evidence in a light most favorable to the Commonwealth.as the
verdict winner, this. Court. finds that there was sufficient evidence to enable the jury to find each
element of the crimes charged, The jury was free to consider and believe all or none of the
evidence.presented to it and this Courtfinds no error in the jury's determination.

17
 a. Weight of the. Eviden.ce

Defendant also argues thatthe verdict was against the weight of the evidence, Def. 's
Post-Sentence Motions, at 3. "A trueweight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be believed."
Commonwealth v. Lewis, 91LA.2d 558, 566.(Pa. Super; Ct. 2006) (quoting Commonwealth v�
Hunzer, 868 A.2d 498, 507 (P�. Super. Ct 2005), appeal denied, 880 A.2d 12:37 (Pa. 2005)). As
.stated in. several. cases for legal precedent, the weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the evidence and to determine the credibility of
the-witnesses, Id. at 565.: furthermore> lit new trial should only be 'awarded When the "verdictis
so contrary to the evidence as to shock one's sense ofjustice." Commonwealth v� Miller, 724
A.2d 895., 901 {Pa. 1999). For the aforementioned reasons, this Court finds that.the verdictwas
not against the weight of the evidence. Toe verdict is not so· contrary to the evidence as to "shock
one's sense of justice."

Il. · Motion to Suppress

Defendant argues that the Court of Common Pleas erred in denying the Defendant's pro
se Motion to Suppress. Def 's Post-Sentence Motions, at3. Specifically, Defendant argues that
"the-arresting officers lackedthe requisite probable cause to pursue the Defendant based oil an
anonymous tip," Def.' s Post-Sentence Motions, at 3. This Court agrees that anonymous tips-are
generally unreliable and anonymous calls alone are not.sufficient to establish reasonable·
suspicion of criminal activity. Coi:rii:nonwealth v. Goodwin, 7 50 A..2d 79S, 798 (Pa .. 2000); Def.ts
Br. at 7. However, in the case sub judice, Sergeant Uncapher relied on more thanjust the
anonymous tip when proceeding to Sandalwood. After leamlng of the anonymous tip, Sergeant
Uncapher had Westmoreland.County 911 run Defendant' s name and Westmoreland County
confirmed that there was an active warrant for Defendant's arrest out of Pennsylvania State
Parcle.N'I'. at 46. Sergeant Uncapher thereafter proceeded to Sandalwood based on this
information. }tT. at 46-47. This Court agrees with the reasoning of the Suppression Court. The
anonymous call merely led SergeantUncapher to further his investigation. N.H. at 43.-45� 47.
Additionall y,this· Court agrees.that the anonymous tip did not give rise to an unlawful entry into
the apartment.and an unwarranted search of Defendant. Commw.tsBr. at 4.Rather, Sergeant

18
Uncapher and Officer Hosack obtained voluntary consent from Lovelace to enter the apartment
and Lovelace notified them tluit Defendant was upstairs. N.T: at 49 ..Defendant's Motion to
Suppress was properly denied,

Ifl, Motion in Limine

Defendant argues.that the Court of Common Pleas erred in denying Defendant's pro se
Motion in Limine "regarding the testimony ofAmber Lovelace; whose hearsay testimony was
presented to the jury during trial." Def. 's Post-Sentence Motions, at 3. Hearsay is iriadinissible,
except under certain circumstances ..Pa; R. E. 802. The Pennsylvania.Rules of Evidence provide
the following in pertinent part:

(c) Hearsay; "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the .current trial or hearing; and
·(2) a party offers in evidence to prove the truth of thematterassertedin the statement.

Pa. It E. 80l(c): This Court.recognizes.Judge McCormick's statement at Defendant's Omnibus
Pretrial Motions Hearing on October 24, 2016, that Defendant's pro se Motion inLimine was to
be "dealt with at the time of trial to determine whether there are orthere aren't any hearsay that
are applicable at the time of trial.t'N'H. at 45. However, Defendant was not represented by
counsel at the time he filed his Motion in Limtne, Defendant was later appointed counsel by this
Court. Defendant's pro se Motion in Limine was primarily denied because he was represented by
Attorney Robinson at the time of trial. N:T. at 5.ThisCourfwanted to leave counsel with any
Motions in Limine. N.T. at 5. Attorney Robinson did not wish to make any Motions in Limine
.and he believed that Defendant' s pro.se Motion in Limine was without merit. N.T. at '.3�5.
Additionally, this Court fmds tbat.Defendant's Motion in Limine regarding the statements
of Lovelace that were presented during trial is without merit/The stat.eD1ents are not hearsay
· because-they were not offered for thetruth of the matter asserted therein. N.T. at 5. Sergeant
Uncaphertestified that Lovelace gave him permission to enter the home and she indicated that
Defendant was present in the upstairs bedroom of �e apartment, N;T. at49. Officer Hosack
confirmed that Lovelace made these statements, N:T. at 76. An out of court statement offered to
explain the.witness's course. of conduct is not hearsay; Commonwealth v� Rega, 933 A.2d 997,

19
.. . ,.

1017 (Pa, 2007); Def.ts Br. at9; Lovelace's statements were notused to prove that Defendant
was located in the upstairs bedroom, Rather; they were used. to show Sergeant Uncapberand
Officer Hosack's actions and the reasons for their actions; therefore, they were riot offered for
the truth of the matter· asserted therein and they ate not considered hearsay .

. JV. Peremptory Strike of Juror

Finally, Defendant.argues that "the Court. of Common Pleas erred in. overruling the
Defendant' s objection to the Commonwealth's use ofa peremptory strike art Juror. Number 21,
who was excluded on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986)."
I)ef.'s Post-Sentence Motions, at 3.. A defendant has the burden to establish a prima facie case of
purposeful discrimination based solely on evidence concerning the prosecutor's exercise of
peremptory challenges at trial. Batson, 476 U.S. at 96. in order to establish, a prim a facie easel
the defendant must first showtnat he is a member of a cognizable racial group and the prosecutor
has exercised peremptory challenges to remove members of the defendant' s race from the venire,
Id. The defendant may rely on the .fact that "peremptory challenges constitute a jury selection
practice that permits those to discriminate who ate of a mind to discriminate;" Id, Finally, the
defendant must show that these facts raise an.inference that the prosecutor used that practice to
exclude the veniremen based on their race. Id. A trial court should consider all relevant .
. circumstances in determiningwhether Defendant has established a prima facie case of purposeful
discrimination. Id. Once.Defendant hE\S established a primafacie case ofpurposeful.
discrimination, the burden then shifts to the Commonwealthto provide a neutral explanatj.onfor
challenging the blackjurors, Id at 97.. The prosecutor's explanation does not need to rise to the
level that wouldjustify the exercise ofa challenge for cause: Id. Additionally, the prosecutor
may uotrebut the defendant's prima facie case by stating that he challenged jurors based on his
intuitive-judgment that they would be partial to the defendant due to their shared race. Id. The..
prosecutor also may not rebut the defendant's prima facie case by denying that he had a
discriminatory motive or affirming his good faith in making selections. Id at98.. The trial court
then must determine if the defendant has established purposeful discrimination, Id;
In view ofall of the relevant circumstances, this Court finds that Defendant.failedto
establish aprima faciecase of.purposeful discrimination based on the Commonwealth's use ofa
peremptory strike on Juror Number 21 during trial. Defendantis black-and the Commonwealth

20
 1 ...

exercised a: peremptory challenge of.Iuror NumberZ l, who is of.the same racial group as
Defendant.Def.ts Br, at 11; JurySelectionProceedings, October 2, 2017; at 4-5, Defendant,
however, has failed to show that these facts raise an inference thatthe prosecutor engaged in a
practice to exclude veniremen based on race. As this Court stated duringjury selection, a.juror of
the same racial group as Defendantwas already selected to Serve on thejuryat the time ofthe
Commonwealth's peremptory strike of Juror N:i.unber 21, An additional juror, who was of the
same racial group as Defendant, was also selected to serve oil the jury during trial. Overall, two
(2) out of three (3) black jurors who werequestioned during voir dire were selected to serve.on
the jury.
Defendant argues that Juror Number 21' s answers during Jury selection do not provide a
basis for exclusion and that the Commonwealthfailed to offer an explanation for its peremptory
strike of Juror Number 21. Def.ts Br .. at 11. JurorNumber 21 affirmatively answeredmJJltipk
questions in ]lisjufor questionnaire. Jury Selection Proceedings) at 2-4. Although Juror Number
2 I provided an explanation for each of his answers and he. indicated multiple times thatlie could
remain impartial during trial, the. prosecuter was.nofprecluded from utilizing one of'his
peremptory strikes. This factorisessentially of,110 consequence in determining whether
Defendant established a.prima facie case of purposeful discrimination based on the
Cotnmonwealth'spereniptorystrike.·A.dditionally,�suming arguendo that the burden.had
shifted to the Commonwealth to provide a neutral explanation for challenging JurorNumbei:21,
the Commonwealth's explanation does not need to rise to tlle level that would justify a challenge
for cause. Batson, 47 6 U;S. �t 97.. As the Commonwealth indicated in its brief, "a party would
never have.. a need torwaste" a peremptory challenge on a.potentlal juror who demonstrates they
could not be fair." Commw .'s Br, at 8. Upon. consideration of the circumstances surrounding the
. . . . . J
exclusion of Juror Number 21, this-Court determined that there was no need for the.
Oommonweelth to provide an explanation on the record for its peremptory challenge. Jury
Selection Proceedings.rat
.
5-6. Ultimately,
.
Defendantfailed.to.establish a prima
.
faciecase of
.

purposeful discrimination and Juror Number 21 was, properly· stricken in accordance with the
Commonwealth's peremptory challenge.
Based on the foregoing, this Court hereby issues the fo llowing order:

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