J-S18005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

WILLIE ROGER HILL

Appellant No. 851 WDA 2017

Appeal from the Judgment of Sentence imposed February 21, 2017

In the Court of Common Pleas of Beaver County

Criminal Division at No: CP-04-CR-0000300-2016

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E. 

MEMORANDUM BY STABILE, J.: FILED JULY 24, 2018

Appellant, Willie Roger Hill, appeals from the judgment of sentence 

imposed in the Court of Common Pleas of Beaver County on February 21, 

2017 following his conviction of persons not to possess a firearm, 18 Pa.C.S.A. 

§ 6105(a)(1). Appellant was tried on that charge after his motion to suppress 

the firearm was denied and after other charges stemming from his arrest were 

severed for trial.1 Upon review, we affirm. 

____________________________________________

1 Appellant also has appealed from a judgment of sentence imposed on April 

12, 2017 following his conviction of firearm not to be carried without a license 

and possession of a controlled substance. 18 Pa.C.S.A. § 6106(a)(1) and 

35 P.S. § 780-113(a)(16). See No. 706 WDA 2017. Both judgments of 

sentence arose from incidents that occurred on January 21, 2016. The cases 

were severed for trial to avoid prejudice to Appellant because the charge of 

persons not to possess firearms required proof of a prior drug conviction 
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In his opinion issued following denial of Appellant’s suppression motion, 

the Honorable Dale Fouse explained: 

By way of criminal information, [Appellant] was charged with 

receiving stolen property, as a person not to possess a firearm, 

carrying a firearm without a license, making terroristic threats, 

simple assault and possession of a controlled substance after 

police located a firearm in [Appellant’s] waistband during a 

Terry[2] stop and frisk. At the suppression hearing, Lieutenant 

Brian Jameson of the Ambridge Borough Police Department was 

the sole witness on behalf of the Commonwealth, and testified to 

the following:

On January 21, 2016 around 10:30 a.m., Lieutenant 

Jameson received a call from the Ambridge Police Station from the 

Ambridge Towers apartment complex housing manager, Babette 

Robertson, concerning a loud disturbance in apartment 910. 

Within 10 to 20 minutes, Jameson arrived at apartment 910, 

belonging to an individual named Marc Ellis. After hearing an 

argument muffled by loud music, he knocked on the door and 

announced his presence. Mr. Ellis and another person who lived

in the complex, a Timothy Hollins, came out into the hallway to 

speak with Lieutenant Jameson. At this time, Mr. Ellis informed 

Jameson that an individual named Willie Roger Hill had come to 

his apartment brandishing a firearm held at his side in a 

threatening manner. Mr. Ellis appeared to be fairly drunk and Mr. 

Hollins appeared to be “extremely intoxicated.” Mr. Hollins was 

arguing and “going after” the building manager, which prompted 

Jameson to call for backup—Sergeant Kleber—who showed up 10 

minutes later. Jameson then escorted a drunk Mr. Hollins from 

the 9th floor to his apartment on the 7th floor, taking the elevator. 

While he was taking the stairs to get back to the 9th floor, he ran 

into an individual named Anitra Truss, who was present for the 

argument in apartment 910, but stated to Jameson that she 

“didn’t know anything.” Jameson then returned to the 9th floor 

where he took a more complete statement from Mr. Ellis, again 

confirming that [Appellant] made a threat with a firearm. Shortly 

____________________________________________

unrelated to the January 21, 2016 incidents. The instant appeal involves only 

the judgment of sentence imposed for persons not to possess firearms. 

2 Terry v. Ohio, 392 U.S. 1 (1968).
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after taking the statement from Mr. Ellis, Lieutenant Jameson and 

the building manager went to the sixth floor to investigate a 

building alarm that turned out to be a malfunctioning [sic] in a 

vacant room. In returning to the 7th floor using the stairwell, 

Lieutenant Jameson saw Sergeant Kleber step out of the elevator 

all while [Appellant], Willie Roger Hill, walked out of Mr. Holmes’ 

apartment. At this time, Jameson approached [Appellant] and 

asked him to place his hands against the wall and patted his 

waistband to find a pistol loaded with 12 rounds. Jameson 

recognized [Appellant] as [a] person convicted of an enumerated 

offense under 18 Pa.C.S. § 6105(b). Following the pat-down, 

James arrested [Appellant] and conducted a search incident to 

arrest which revealed a driver’s license as well as a vial of 

suboxone. During the arrest, Jameson asked [Appellant] whether 

he had a permit for the firearm, to which [Appellant] rhetorically 

asked, “what do you think?” 

Trial Court Opinion, Suppression, 10/20/16, at 2-3 (references to notes of 

testimony, footnotes, and some capitalization omitted). 

The trial court explained that Appellant sought suppression of the 

firearm retrieved from his waistband based on his claim that Lieutenant 

Jameson did not have the required reasonable suspicion to conduct a Terry 

search. Appellant argued that the initial disturbance to which the officer 

responded was not ongoing at the time of the stop. Following a suppression 

hearing on October 4, 2016, the trial court denied the motion, finding 

Lieutenant Jameson “had the required level of reasonable suspicion to conduct 

a Terry search of [Appellant].” Id. at 6.

On January 10, 2017, Appellant filed a motion to sever Count 2 (persons 

not to possess a firearm) from the remainder of the Information. The trial 

court granted the motion by order of the same day. Order, 1/10/17, at 1. 
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On January 11, 2017, Appellant proceeded to a jury trial before Judge 

Fouse on the sole count of persons not to possess a firearm. At the conclusion 

of trial, the jury returned a verdict of guilty. On February 21, 2017, the court 

sentenced Appellant to a term of imprisonment of not less than five nor more 

than ten years. Appellant filed post-sentence motions that were denied on 

May 1, 2017. He filed a timely notice of appeal on May 31, 2017. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925. 

In this appeal, Appellant presents two issues for our consideration:

I. Was the evidence insufficient to support the verdict of guilty 

of Person[s] not to Possess a Firearm because the firearm 

was not shown to have readily been made operable by 

means that the [A]ppellant had under his control at the time 

that he actually possessed the firearm and under the same 

conditions that exited when he possessed the firearm?

II. Was the arresting officer justified in patting down 

[Appellant] when the officer had no information regarding 

the time frame that [Appellant] may have possessed a 

firearm and when [Appellant] engaged in no suspicious 

conduct at the time that he was apprehended?

Appellant’s Brief at 8.

Appellant’s first issue involves a challenge to the sufficiency of evidence 

to support his conviction of persons not to possess a firearm. In 

Commonwealth v. Miklos, 159 A.3d 962 (Pa. Super. 2017), we reiterated: 

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission thereof 
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by the accused, beyond a reasonable doubt. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. Any doubt about the defendant’s guilt is to be resolved 

by the fact finder unless the evidence is so weak and inconclusive 

that, as a matter of law, no probability of fact can be drawn from 

the combined circumstances.

Id. at 967 (quoting Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. 

Super. 2013) (en banc) (internal citations and quotations omitted)). Further, 

“[t]he Commonwealth may sustain its burden by means of wholly 

circumstantial evidence, and we must evaluate the entire trial record and 

consider all evidence received against the defendant.” Id. (citing 

Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 598 (2007)).

“To sustain a conviction for the crime of persons not to possess a 

firearm, the Commonwealth must prove that ‘[Appellant] possessed a firearm

and that he was convicted of an enumerated offense that prohibits him from 

possessing, using, controlling, or transferring a firearm.’” Id. (citing 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009)). 

Because Appellant does not contest that he was convicted of an enumerated 

offense that prohibits him from possessing a firearm, we shall focus on the 

whether the Commonwealth proved that he “possessed a firearm.”3 

____________________________________________

3 The Commonwealth presented evidence of Appellant’s 2010 felony conviction 

of possession with intent to deliver, an enumerated offense precluding him 

from legally possessing a firearm. See N.T., Trial, 1/11/17, at 164-69.
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The term “firearm” is defined as any weapon “designed to or may 

readily be converted to expel any projectile by the action of an explosive or 

the frame or receiver of any such weapon.” 18 Pa.C.S.A. § 6105(i). In the 

instant case, the trial court considered Appellant’s contention that the 

Commonwealth failed to prove beyond a reasonable doubt that Appellant 

“knowingly, intentionally or unlawfully possessed a firearm or that the firearm 

was designed for the prohibited purpose.” Rule 1925(a) Opinion, 7/31/17, at 

3 (quoting Appellant’s Rule 1925(b) Statement at ¶ 2).4 

The trial court reviewed the testimony of Lieutenant Jameson, including 

his statement that he removed the firearm from Appellant’s waistband, 

handed it to Sergeant Kleber, and noticed “the hammer was cocked on it, and 

it was in a functional state[.]” Id. at 4 (quoting Notes of Testimony (“N.T.”), 

Trial, 1/11/17, at 64). Sergeant Kleber proceeded to clear the weapon, decocking the hammer, dropping the magazine, and ejecting the shell casing 

from the chamber. Id. In Lieutenant Jameson’s experience, “the gun was in 

a state to be fired.” Id. 

The trial court also considered the testimony of Ambridge Police Chief 

Mann who testified as to his firearms experience and to test firing the gun 

____________________________________________

4 We note that Appellant’s brief does not include a copy of Judge Fouse’s Rule 

1925(a) Opinion but rather includes Judge Knapfelc’s Rule 1925(a) Opinion 

from the appeal docketed at No. 706 WDA 2017. Fortunately, Judge Fouse’s 

Rule 1925(a) Opinion is included in the certified record.
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seized by Lieutenant Jameson. Chief Mann testified that he fired five shots 

from the gun, using ammunition from the station rather than the shells 

recovered from the gun, and stated that the “gun worked flawlessly, ejected 

flawlessly, [and] the safety worked.” Id. at 5 (quoting N.T., Trial, 1/11/17, 

at 117). Based on Chief Mann’s testimony, it is clear that the firearm seized 

from Appellant was a weapon designed to expel a projectile by the action of 

an explosive, bringing it within the definition of a firearm under Section 

6105(i). 

Appellant suggests that his gun was not operable. He contends the 

Commonwealth failed “to provide evidence that the firearm was operable in 

the condition and with the bullets found on [Appellant]” and, therefore, his 

conviction for persons not to possess a firearm cannot stand. Appellant’s Brief 

at 14. However, a gun need not be proven to be operable in order to qualify 

as a firearm. See Commonwealth v. Miklos, 159 A.3d at 967 (quoting 

Commonwealth v. Thomas, 988 A.2d at 672).5 

____________________________________________

5 Appellant relies on Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973), 

in support of his contention that a gun must be operable. His reliance is 

misplaced. While Layton required proof that a gun was operable, that case 

was decided under a provision of the Uniform Firearms Act, 18 P.S. § 4628, 

which has been repealed and replaced by Section 6105. “The current statute 

applies to any weapon that is designed to fire ammunition containing an 

explosive charge[.]” Thomas, 988 A.2d at 671.
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The trial court concluded that the evidence was sufficient to support a 

conviction that Appellant intentionally, knowingly or recklessly possessed a 

firearm. Further, it was undisputed that Appellant had been convicted of an 

enumerated offense prohibiting him from possessing a firearm. Based on our 

review of the record in the light most favorable to the Commonwealth as 

verdict winner, we agree with the trial court that the evidence was sufficient 

to support Appellant’s conviction of persons not to possess a firearm. 

Appellant’s sufficiency challenge fails.

In his second issue, Appellant asserts Lieutenant Jameson was not 

justified in conducting a pat down of Appellant. He claims Jameson lacked 

information regarding the timeframe during which Appellant may have 

possessed a firearm and argues he was not involved in any suspicious activity 

when he was apprehended by Jameson. Although not stated in these terms, 

in essence Appellant is raising a challenge to the denial of his motion to 

suppress the firearm. As a challenge to the denial of a motion to suppress, 

we apply the following standard of review:

[An appellate court’s] standard of review in addressing a challenge 

to the denial of a suppression motion is limited to determining 

whether the suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn from those 

facts are correct. Because the Commonwealth prevailed before 

the suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal conclusions are 
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erroneous. Where . . . the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1256 (Pa. Super. 2017) (quoting 

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) 

(alterations in original) (additional citations omitted)). 

As the trial court correctly noted, the Federal and Pennsylvania 

Constitutions offer protections against unreasonable searches and seizures. 

Trial Court Opinion, Suppression, 10/20/16, at 4 (citing U.S. Const. Amend. 

IV; Pa. Const. Art I, § 8). Essentially, police must either have a warrant or 

proceed under one of the exceptions to the warrant requirement. One such 

exception is a Terry stop and frisk that allows an officer to stop an individual 

and conduct a pat-down search of outer clothing to search for weapons that 

might be used to harm police or others nearby. Id. at 4-5 (citing Terry, 

supra, and Commonwealth v. E.M., 735 A2d 654 (Pa. 1999). A court must 

consider the totality of the circumstances to determine whether police had 

reasonable suspicion. However, absolute certainty is not required but, rather, 

a level of certainty of a reasonably prudent officer. Id. at 5 (citing, inter alia, 

Commonwealth v. Gray, 896 A.2d 601, 606 (Pa. Super. 2006)). Further, 

“a trial court does not err in finding that an officer had reasonable suspicion 

when relying on statements by a third person to believe that an individual is 
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armed and dangerous.” Id. (citing United States v. Murray, 821 F.3d 386, 

393 (3d Cir. 2016), cert. denied, 137 S.Ct. 244 (2106)).

The trial court stated:

Based on a review of the record and applicable case law, we do 

find that Lieutenant had the required level of reasonable suspicion 

to believe [Appellant] was armed and dangerous. We begin our 

analysis by noting that we consider the actions of Lieutenant 

Jameson objectively and with respect to a totality of the 

circumstances. The purpose of the initial investigation brought 

Jameson into a thorny situation with three different potential 

actors, all of whom were experiencing varying levels of 

inebriation. The disturbance was ongoing even after he knocked 

on the door and Mr. Ellis and Mr. Hollins stepped out of the 

apartment. Mr. Hollins continued to be belligerent, argumentative 

and even physical with the apartment manager even after he left 

the apartment. At no time could we say that the situation reached 

a point of calm allowing proceed [sic] to proceed without extreme 

reticence. In fact, Jameson found the situation to be so potentially 

troublesome that he called for backup. To this extent, we do find 

that the initial disturbance was an ongoing matter that continued 

right up until the Terry search was conducted. 

Trial Court Opinion, Suppression, 10/20/16, at 5-6. 

Based on the evidence of the Commonwealth presented at the 

suppression hearing, we conclude Lieutenant Jameson had reasonable 

suspicion to search Appellant. Because we find the record supports the court’s 

factual findings and its legal conclusions are correct, Appellant’s second issue 

fails.

Judgment affirmed. 

Judgment Entered.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2018