NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 10-3656

_____________ PEOPLE OF THE VIRGIN ISLANDS

v. DARYL BLYDEN, Petitioner

_____________ Appeal from the Supreme Court of the Virgin Islands (Supreme Court Crim inal No. 2007-0105) (Superior Court Criminal No. F399/2005) Supreme Court Justice: Honorable Rhys S. Hoge

_____________ Submitted Under Third Circuit LAR 34.1(a) April 15, 2011 Before: SCIRICA, RENDELL and AMBRO, Circuit Judges (Opinion Filed: April 19, 2011)

_____________ OPINION OF THE COURT

_____________ RENDELL, Circuit Judge

. Daryl Blyden appeals the Virgin Islands Supreme Court’s (“SCVI”) judgment that upheld his conviction and sent ence for, among other crimes, first-degree murder. Blyden challenges the judgment on two fronts; first, the Trial Court erred in admitting evidence that was the fruit of an unreasonable search in violation of the Fourth Amendment; andsecond, the Trial Court erred in allowing the previous testimony of an absent witness to be read into the record at tr ial in violation of the Sixth Amendment. We will affirm. Blyden’s first challenge is to the SC VI’s judgment to uphold the Trial Court’s denial of a motion to suppress evidence as the fruit of an unlawful search. We review the findings of fact relating to such a challenge for clear error and our review of the law is plenary. United States v. Shields , 458 F.3d 269, 276 (3d Cir. 2006). In Terry v. Ohio , the Supreme Court of the United Stat es held that a police office r may stop and frisk a suspect when acting under a reasonable suspicion. 392 U.S. 1, 30 (1968). Blyd en argues that the officer did not possess a reasonable suspicion, but we disagree and his challenge on this ground must fail. The officers were acti ng on information which was radioed from the crime scene only minutes after the shooti ng. The radioed message was based on eyewitness information; with a description of the suspect and the direction from which he was traveling. The Appellant was sighted within five minutes. He matched the description and was seen exitin g the gut and sweating. These facts were sufficient to create a reasonable suspicion. Blyden also urges that because the office rs drew their guns and handcuffed him, the search actually amounted to an arrest under the Fourth Amendment, requiring the higher justification standard of probable cause. This argum ent also fails. We held in Baker v. Monroe Township that “[t]here is no per se rule that pointing guns at people, or handcuffing them, constitutes ar rest.” 50 F.3d 1186, 1193 (3d Cir. 1995). Actually, a police officer may take measures “reasonabl y necessary to protect themselves and maintain the status quo” when stopping a suspect. United States v. Hensley , 469 U.S.
2221, 235 (1985). We conclude that the officers were acting appropriately when they stopped Blyden with guns draw n and immediately handcuffed him, as he was fleeing a shooting and was likely armed. Blyden’s second contention is a Sixth Am endment challenge to the Trial Court’s decision to allow the arresting officer’s testimony from a supp ression hearing to be read into the record after the Trial Court found th at the officer was unavailable. Our standard of review here is plenary. United States v. Mitchell , 145 F.3d 572, 576 (3d Cir. 1998). Whether the Trial Court’s decision to admit the officer’s previous testimony was in violation of the Sixth Amendmen t is a close call. However, if it was error to admit the testimony, we see any such error as harmless. United States v. Jimenez , 513 F.3d 62, 78 (3d Cir. 2008) (“The erroneous admission of testimonial he arsay in violation of the Confrontation Clause is “‘simp ly an error in the trial pro cess itself’ ... [that] we may affirm if the error was harmless.” (quoting United States v. Hinton, 423 F.3d 355, 361-62 (3d Cir. 2005))). The Supreme Court has established factor s for us to consid er when deciding whether such an admission amounts to harmle ss error; namely, “the importance of the witness' testimony in the prosecution's case , whether the testimony was cumulative, the presence or absence of evidence corroboratin g or contradicting the testimony of the witness on material points, the extent of cr oss-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Here, we find, just as the SCVI found, that the officer’s testimony was cumulative in light of the other evidence of record, there was strong evidence linking
34 Blyden to the gun and the gun to the bullets and casings recovered from the body and at the scene, and in light of all of this, the te stimony was not very important in view of the prosecution’s strong case. Theref ore, any error was harmless. Accordingly, we will affirm.