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Commonwealth v. Williams

September 4, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
GARY WILLIAMS, APPELLANT



Appeal from the Judgment of Sentence May 29, 2008 in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0009046-2007.

The opinion of the court was delivered by: Bender, J.

BEFORE: KLEIN, BENDER and CLELAND, JJ.

OPINION

¶ 1 Gary Williams (Appellant) appeals the judgment of sentence imposed following his convictions for three violations of the Uniform Firearms Act, specifically, Persons Not to Possess Firearms, Firearms Not to be Carried Without a License, and Carrying Firearms on Public Streets in Philadelphia. See 18 Pa.C.S. §§ 6105, 6106, and 6108. Appellant challenges the trial court's refusal to suppress certain evidence seized following his arrest, contending that the police stopped him without reasonable suspicion. Appellant also asserts that it was erroneous for the trial court to impose two consecutive terms of incarceration for offenses that should have merged for the purposes of sentencing. We find no merit in Appellant's claims, and therefore affirm the judgment of sentence.

¶ 2 The trial court summarized the facts of this case as follows:

At the hearing on Appellant's motion to suppress, the Commonwealth presented the testimony of Philadelphia Police Officer, Sean McGinnis. On March 31, 2007, at approximately 7:11 p.m., Officer McGinnis was on routine patrol when he received a radio call advising of a robbery in progress at the intersection of Front and Venango Street, in the city and county of Philadelphia, Pennsylvania. Arriving at the location, Officer McGinnis observed Appellant walking northbound on Front Street "with two female officers behind him walking, trying to catch up." He also encountered a Hispanic male []pointing up to the [Appellant] yelling. "He has got a gun."

Appellant turned the corner on Front Street and now was walking eastbound on Venango Street. At this point, Officer McGinnis pulled his patrol car about 15 feet in front of Appellant, while the two aforementioned female officers gave Appellant "verbal commands." Appellant initially appeared to comply with the officers' "verbal commands," by placing his hands up against an adjacent wall, but he then "broke loose from the two . . . officers and ran southbound."

Pursuing on foot, Officer McGinnis observed Appellant "clutching the right side of his waist" throughout the entire chase. Several blocks away, Appellant eventually was cut-off by a marked police vehicle, at which point Officer McGinnis observed him retrieve a black handgun from his waistband and toss the same into a "fenced lot area." The officers then apprehended Appellant and Officer McGinnis recovered the firearm, which was a 9 millimeter, loaded, handgun.

This court denied Appellant's suppression motion. At the ensuing trial, the Commonwealth presented a ballistics report indicating that the firearm was operable, and a certificate of Non-Licensor indicating that Appellant lacked a valid license to carry the same.

Appellant also testified, claiming that he was standing in the area of Front and Venango Street when he observed a patrol car at a traffic light. Because he was smoking marijuana at the time, Appellant wanted to avoid the police and therefore "walked down the street." Appellant testified that no officer ever instructed him to stop, and that he simply "dropped the marijuana and . . . turned around and went the other way." As the officers approached, Appellant ran, but stopped after an officer "pulled his gun on me and told me to get down." Appellant further testified that he never had a gun on him.

Trial Court Opinion (T.C.O.), 12/18/08, at 2-7 (citations omitted). Following a bench trial, the court found Appellant guilty of violating sections 6105, 6106, and 6108 of the Uniform Firearms Act, and sentenced him to five to ten years' incarceration for the section 6105 violation, followed by a term of four years' probation for the section 6106 violation. No further penalty was imposed for the section 6108 violation. Appellant then filed this appeal from the judgment of sentence raising three questions for our review:

1. Did not the trial court err in denying Appellant's motion to suppress inasmuch as the evidence was insufficient to establish reasonable suspicion either that there was criminal activity afoot involving Appellant or that Appellant was armed and dangerous so as to permit a frisk and any evidence from Appellant's subsequent flight was inadmissible?

2. Did not the trial court err in sentencing Appellant to consecutive sentences for a single criminal act in violation of his right not "to be twice put in jeopardy of life and limb"?

3. Should not this Court grant relief on Appellant's claim that [Appellant received an illegal sentence*fn1 ], as Appellate counsel was facially ineffective for failing to include ...


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