J-A05005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

DERRICK HARPER,

                            Appellee                No. 3137 EDA 2014


                 Appeal from the Order Entered October 6, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003051-2014
                          and CP-51-CR-0003116-2014


BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                               FILED MAY 04, 2016

       The Commonwealth appeals as of right, under Pennsylvania Rule of

Appellate Procedure 311(d), from an interlocutory order of court entered on

October 6, 2014, granting the motion to suppress physical evidence that was

filed by Derrick Harper (hereinafter “Harper”).   We vacate the trial court’s

order and remand.

       On September 26, 2014, the trial court held a hearing on Harper’s

pre-trial motion to suppress all physical evidence.    See N.T. Suppression

Hearing, 9/26/14, at 4.1 The trial court has provided us with an able and
____________________________________________


1
   The certified record does not contain Harper’s motion to suppress.
However, during the suppression hearing, Harper’s counsel declared that the
evidence against him must be suppressed because: Harper was subjected
to an illegal investigatory detention that lacked reasonable suspicion; the
initial search of the vehicle was illegal; the four corners of the search
(Footnote Continued Next Page)


*Former Justice specially assigned to the Superior Court.
J-A05005-16



well-written summary of the evidence that was presented during the

suppression hearing. As the trial court explained:

         [Philadelphia Police] Officer John Ellis [was the sole witness
         to testify at the suppression hearing.         As Officer Ellis
         testified,] . . . on December 30, 2013[,] at approximately
         3:29 [p.m.], [Officer Ellis] . . . , a then [ten-year] veteran
         of the police force and his partner, [P]olice [O]fficer Thomas
         Rosinski . . . , responded to a radio call about a shooting at
         2148 Nedro [Avenue], [in Philadelphia]. At approximately
         4:00 [p.m.], [the officers] arrived at Albert Einstein Hospital
         . . . , where the shooting victim was being treated[.2]

         Officer Ellis testified that upon arriving at the hospital, a
         security guard, Lieutenant Johnson, informed him that
         [“there were three males that just left the [emergency
         room],” that] one of [the] three males [had a gun, and that
         the three males were in a blue Mercury automobile that was
         in the parking lot.] Officer Ellis at the preliminary hearing
         could not recall whether, at the time the security guard told
         him about the gun, he was advised that this gun
         information actually came from a “patron inside the
         hospital[,]” but he later testified that he did not know how
         [Lieutenant] Johnson got the information. Further, Officer
         Ellis claimed he never asked Lieutenant Johnson for the
         basis of his knowledge about the gun or men.

         [Harper] was not specifically identified as the person
         carrying a gun by [Lieutenant] Johnson or any civilian.
         Moreover, Officer Ellis did not receive any further

                       _______________________
(Footnote Continued)

warrant did “not contain the requisite probable cause for a search of . . .
[the] automobile;” and, the search warrant contained material
misstatements. N.T. Suppression Hearing, 9/26/14, at 4-8.
2
  The victim was shot in the head and, after he was taken to Albert Einstein
Medical Center, the victim was pronounced dead at 4:11 p.m. Application
for Search Warrant and Affidavit, 1/2/14, at 2.




                                            -2-
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       information regarding the men or a gun from the security
       officer or any civilian witnesses.

       [Officer] Ellis, [Officer Rosinski], Lieutenant Johnson[,] and
       other hospital security staff[] then walked out [into the
       parking lot. According to Officer Ellis, he scanned the
       parking lot and saw a blue Mercury automobile with three
       people inside. Officer Ellis testified that he] approached the
       parked blue car, with his weapon drawn, and the person
       sitting in the front passenger seat, later identified as
       [Harper], immediately exited the vehicle[] and walked
       toward [Officer] Ellis and the others.         [As Officer Ellis
       testified, he did not say anything to Harper at this time.
       Rather, Harper was the first to speak. Officer Ellis testified:
       “[after Harper exited the vehicle, [Harper] immediately
       walked over towards me because now at this time the gap
       is closing between me and the car and me and Mr. Harper.
       He gets out and he starts talking to me about – he just
       starts spilling about his – that’s my brother in there – along
       those lines. . . . I mean, he was very frantic.] . . . [Harper]
       was “frantic” . . . because he was the brother of the
       shooting victim and wanted to know what was going on
       [with his brother in the hospital]. . .].    A short time later,
       the other car occupants exited the vehicle. . . .

       [Officer Ellis] did not observe any indicia that any of the
       men had a weapon. [Officer] Ellis did not observe any
       criminal activity by [Harper] or the other two men at this
       time. [Officer] Ellis did not, at any time, ask Lieutenant
       Johnson which of the three men allegedly carried the gun
       that precipitated the approach. Officer Ellis first frisked
       [Harper] and then the driver, and either [Officer Ellis] or his
       partner also frisked the rear passenger, and they did not
       find a gun or holster on any of them. . . .

       At the time of the frisks, Lieutenant Johnson was present
       with [Officer] Ellis, albeit slightly behind him. No one came
       forward to identify which man allegedly possessed the
       firearm. There was no testimony that[,] at any time prior
       to these frisks[,] [] Officer Ellis ask[ed] Lieutenant Johnson
       which of the three men was the one [that] had been
       carrying a gun.




                                    -3-
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       The driver provided his license upon [Officer Ellis’] request.
       The three men complied with [Officer Ellis’] requests.

       After finding no gun on any of the men, [Officer] Ellis
       continued to request information from one or more of them
       beginning with the driver’s license and registration. He
       obtained the licenses of the [] men after asking for them as
       he continued investigating the vehicle.         [Officer] Ellis
       separately said that he was detaining the three men
       because he was investigating them about the homicide.
       [Officer] Ellis testified that he realized that [Harper] had
       something to do with the homicide he was investigating. . .
       .

       Instead of placing the men in his police car because he
       apparently found it inconvenient to retrieve his police car
       from a neighboring car lot, [Officer] Ellis decided to put
       them back in the vehicle. [Officer] Ellis intended for the
       three men to return to the car in a secure location where “I
       could have them sitting down and they weren’t standing up
       and able to run or creating any kind of problem” during
       what he termed a “vehicle investigation.” He wanted to
       make sure the car [was not] stolen.

       However, before permitting them to re-enter the vehicle,
       [Officer Ellis] opened the front passenger car door to
       conduct a search. . . .

       Upon opening the front passenger door and bending down,
       [Officer Ellis] testified that he could see a gun underneath
       the front passenger seat with no mention of the gun being
       in plain view. He then placed the men in handcuffs, placing
       [Harper] under arrest and detaining the other two men, and
       called for a search warrant. . . .

       The search warrant[,] prepared by [Detective John Bartol,]
       stated [that] “police performed a cursory check of the
       vehicle before allowing the males back in the vehicle[]” and
       “observed a black semi[-]automatic handgun from under
       the front passenger seat.” The warrant did not mention
       that Officer Ellis actually opened the door and peered
       underneath the front passenger seat before he could see
       the handgun.


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Trial Court Opinion, 3/23/15, at 2-5 (internal citations omitted).

      During the suppression hearing, both the Commonwealth and Harper

introduced the Application for Search Warrant and Affidavit of Probable

Cause into evidence. See, e.g., N.T. Suppression Hearing, 9/26/14, at 75

and 76. The application declared that the blue Mercury Marquis automobile

was owned by an individual named Malcolm Guillaume Garland. Application

for Search Warrant and Affidavit, 1/2/14, at 1.

      Following the suppression hearing, the trial court took the matter

under advisement and, on October 6, 2014, the trial court entered an order

granting Harper’s motion to suppress all evidence.      During the October 6,

2014 proceeding, the trial court explained its reasoning in open court:

        I believe that the tip was an anonymous tip. There was not
        enough further corroboration of it, no clothes, et cetera. He
        did point to the people in the car, but there were four [sic]
        of them. I think the officer was – if he had said which guy,
        I think he would’ve been in a better position. Even with
        that, no description of clothing, et cetera. And we don’t
        know who was carrying the gun. So if he had pointed that
        out, it may’ve been a little bit better, but it wasn’t.

        There was no probable cause for any of the searches, not
        even reasonable suspicion for the pat down as far as I’m
        concerned. I think the whole thing was a pretext. I think
        the officer wanted into that car, and he did all he could to
        get in and finally did.

        So with that tip being insufficient, everything else falls. The
        motion is granted as to all evidence.

N.T. Hearing, 10/6/14, at 4-5.




                                     -5-
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       The trial court also issued an opinion where it more fully explained its

factual findings and legal conclusions.3         Of note, the trial court found as a

fact that:4
____________________________________________


3
  In the trial court’s opinion, when analyzing Harper’s expectation of privacy
in the vehicle, the trial court declared: “we do not find the testimony
presented by Officer Ellis credible describing his actions and statements in
the hospital parking lot. The Commonwealth fell far short of showing
[Harper] had no reasonable expectation of privacy and it failed to meet its
burden of proof that the Terry [v. Ohio, 392 U.S. 1 (1968)] search of the
vehicle was legal.” Trial Court Opinion, 3/23/15, at 7. While the trial court
broadly declared that it did “not find the testimony presented by Officer Ellis
credible describing his actions and statements in the hospital parking lot,”
Officer Ellis was the only witness to testify during the suppression hearing
and the trial court expressly concluded that large portions of Officer Ellis’
testimony “describing his actions and statements in the hospital parking lot”
were, in fact, true. See, e.g., Trial Court Opinion, 3/23/15, at 1-10. Thus,
and contrary to the trial court’s broad and vague statement, the trial court
indeed credited the majority of Officer Ellis’ testimony.

We read the trial court’s broad and vague statement that it did “not find the
testimony presented by Officer Ellis credible describing his actions and
statements in the hospital parking lot,” to mean that, at times, it found that
Officer Ellis was not credible when the officer testified to “his actions and
statements in the hospital parking lot.” The specific instances where the
trial court found Officer Ellis not credible were noted by the trial court and
are recounted in the body of this memorandum, supra. Nevertheless, at
this time, we note that the trial court found Officer Ellis not credible in the
following instances:     1) contrary to Officer Ellis’ suppression hearing
testimony, when Lieutenant Johnson told Officer Ellis “there were three
males that just left the [emergency room]” and one of the three males “had
a gun,” Officer Ellis knew that Lieutenant Johnson’s information did not come
from personal observation, but rather came from an anonymous tip; 2)
contrary to Officer Ellis’ suppression hearing testimony, when Officer Ellis
decided to place Harper and the other two individuals in the blue Mercury
Marquis to await his investigation, Officer Ellis did so as “a pretext for
searching” the vehicle; and, 3) contrary to the search warrant application,
the firearm was not in plain view in the automobile, but was rather hidden
underneath the front passenger seat of the car. Id. at 7, 8, and 9-10.



                                           -6-
J-A05005-16



       when Lieutenant Johnson told Officer Ellis “there were three males that

        just left the [emergency room]” and one of the three males “had a

        gun,” Officer Ellis knew that Lieutenant Johnson’s information did not

        come from personal observation, but rather came from an anonymous

        tip; Trial Court Opinion, 3/23/15, at 8;5
                       _______________________
(Footnote Continued)
4
  Since the trial court granted Harper’s motion to suppress, our standard of
review demands that we “we [] consider only the evidence of the defense
and so much of the evidence for the Commonwealth as remains
uncontradicted when read in the context of the record as a whole.”
Commonwealth v. Mistler, 912 A.2d 1265, 1268-1269 (Pa. 2006).
Viewing the record in this light, the evidence supports all of the trial court’s
factual conclusions that we recount in the body of this memorandum.
However, some of the trial court’s factual conclusions required that the court
render a decision upon conflicting and/or ambiguous evidence. In the
following summary, we will note where the trial court was required to arrive
at a factual conclusion based upon conflicting and/or ambiguous evidence.
5
  Viewing the record in the requisite light, the evidence supports the trial
court’s factual conclusion that Officer Ellis knew that Lieutenant Johnson’s
information did not come from personal observation, but rather came from
an anonymous tip. At the outset, it is true Officer Ellis testified at the
suppression hearing that, when he was first approached by Lieutenant
Johnson, Lieutenant Johnson did not tell Officer Ellis how Lieutenant Johnson
learned there was a “man with a gun.” See N.T. Suppression Hearing,
9/26/14, at 36.       However, during cross-examination, defense counsel
confronted Officer Ellis with his prior testimony during Harper’s preliminary
hearing. Officer Ellis testified:

          [Q:] We talked a little bit earlier on cross-examination that
          – do you remember, going back to [the preliminary hearing
          where you testified] “[i]n fact, your information from the
          security guard was that it wasn’t him that observed the
          gun; it was a patron inside the hospital,” correct[?]

          Do you remember being asked about that question that you
          were asked at the preliminary hearing?
(Footnote Continued Next Page)


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       when Officer Ellis approached the parked, blue Mercury Marquis,

        Officer Ellis had “his weapon drawn;” id. at 3;6

                       _______________________
(Footnote Continued)


          [A:] Yes, and I responded yes.          I responded to your
          question.

          I said, “Yes, that’s what I said.”

          I said, “Yeah, however, I got the information, I don’t know.”

          It says, “However I got the information; I don’t know
          exactly – I don’t exactly recall how the security guard told
          me because it happened so fast.”

          I don’t know how he said it. All I know is that he said it to
          me. I can’t sit here and tell you the exact words that he
          said to me.

Id. at 68.

Although Officer Ellis’ above testimony is fairly ambiguous, the trial court
resolved the ambiguity and interpreted this testimony to mean that, when
Lieutenant Johnson approached Officer Ellis and told him that an individual
in a blue Mercury automobile had a gun, Officer Ellis was aware “that the
information source about [the] gun was an anonymous tipster.” Trial Court
Opinion, 3/23/15, at 8. Given the ambiguity in Officer Ellis’ testimony, the
trial court’s factual finding is supported by the record and binding upon this
Court.
6
  Viewing the record in the requisite light, the evidence supports the trial
court’s factual conclusion that, when Officer Ellis approached the parked,
blue Mercury Marquis, Officer Ellis had “his weapon drawn.” Specifically,
during Officer Ellis’ suppression hearing testimony, the following exchange
took place:

          Q: And when the other two [men] exited the [blue Mercury
          Marquis], where did they go?

(Footnote Continued Next Page)


                                            -8-
J-A05005-16



      when Harper initially approached Officer Ellis and said “that’s my

       brother in there,” Officer Ellis believed Harper’s statement and, thus,

       believed “that [Harper] was the brother of a gunshot victim who was

       frantic/agitated and understandably concerned for his brother’s life;”

       id. at 9;

      Harper “was not specifically identified as the person carrying a gun by

       [Lieutenant] Johnson or any [other] civilian;” id. at 3;


                       _______________________
(Footnote Continued)

         A: They walked over towards us a little slower than Mr.
         Harper did that day.

         Q: And at that point, how many officers were on scene,
         when you had three males walking towards you?

         A: Just my partner and I and the security guards were
         behind us.

         Q: At that point, did you have your gun drawn?

         A: No, I did.

N.T. Suppression Hearing, 9/26/14, at 41.

Officer Ellis’ answer “[n]o, I did,” to the question “did you have your gun
drawn,” is ambiguous on paper. However, the trial court heard Officer Ellis’
live testimony and interpreted Officer Ellis’ testimony to mean that he did, in
fact, have his gun drawn when he initially approached Harper. Trial Court
Opinion, 3/23/15, at 3. This interpretation is supported by the record and
binding on this Court, even though, during cross-examination, Officer Ellis
answered “Yes” to the following question posed by Harper’s counsel: “You’re
in full uniform that also includes – you didn’t have your firearm drawn, but
both you and your partner have a firearm, correct?” N.T. Suppression
Hearing, 9/26/14, at 54.




                                            -9-
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       prior to the frisk of Harper and the two other individuals, Officer Ellis

        “did not observe any indicia that any of the men had a weapon” and

        “did not observe any criminal activity by [Harper] or the other two

        men;” id.;

       the frisk of Harper and the two other individuals did not produce a

        weapon or a holster; id.;

       Harper and the other two individuals were compliant with Officer Ellis

        throughout the entire interaction; id. at 9;

       following the frisk, Officer Ellis continued to detain Harper and the

        other individuals “because he was investigating them about the

        homicide . . . [and because] he wanted to make sure the vehicle [in

        which the men had exited] wasn’t stolen;” id. at 4;

       Officer Ellis had no reason to suspect that the car was stolen; id. at 4,

        9, and

       when Officer Ellis decided to place Harper and the other two

        individuals in the blue Mercury Marquis to await his investigation,

        Officer Ellis did so as “a pretext for searching” the vehicle; id. at 4.7
____________________________________________


7
   Viewing the record in the requisite light, the evidence supports the trial
court’s determination that, when Officer Ellis decided to place Harper and the
other two individuals in the blue Mercury Marquis automobile, he did so as “a
pretext for searching” the vehicle. Trial Court Opinion, 3/23/15, at 4. As
the trial court explained, Officer Ellis “could have placed them in his squad
car while he waited to obtain a search warrant.” Id. Therefore, since the
trial court’s factual finding is supported by the record, it is binding upon this
Court.



                                          - 10 -
J-A05005-16



      At this point we note that, notwithstanding the trial court’s factual

finding that Officer Ellis had “his weapon drawn” when he approached the

blue Mercury Marquis automobile, there is no evidence in this case that,

when the officer approached the automobile, the officer had his weapon

pointed in the direction of either Harper or the automobile.        See N.T.

Suppression Hearing, 9/26/14, at 1-80. Further, with respect to the initial

encounter between Officer Ellis and Harper, we note that the uncontradicted

evidence in this case demonstrates: that Harper initiated the contact with

the officers while Officer Ellis remained a considerable, but unspecified,

distance away from the blue Mercury; that Harper spoke to the officers

before he was spoken to; and, that, before Officer Ellis said anything, Harper

identified himself as the brother of the shooting victim who was inside the

hospital. Officer Ellis testified:

         Q: And when you were walking towards the parking lot, did
         you observe anything?

         A: I did; Mr. Harper.

         Q: Where was he when you first saw him?

         A: He was in the front passenger’s seat of the blue Mercury
         in the parking lot.

         Q: Was he alone in that vehicle or were there other people?

         A: No, there was two others. There was a driver, and there
         was a passenger directly behind the front passenger’s seat
         that Mr. Harper was in.

                                      ...


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J-A05005-16


       Q: And when you said you saw [Harper] in the front
       passenger’s seat, what did he do next?

       A: I looked in the direction of the sedan, the Mercury, and
       immediately upon me walking over towards that direction
       that’s when Mr. Harper exited the vehicle.

       Q: Were you yelling at Mr. Harper, “Get out of the vehicle;
       get out of the vehicle”?

       A: No. I was far away. I couldn’t have.

                                    ...

       Q: As you were walking towards the vehicle, were you
       yelling anything at all?

       A: Nothing at all.

       Q: And you said that Mr. Harper exited the vehicle; is that
       correct?

       A: Yes.

       Q: When he exited the vehicle, what did he do?

       A: He immediately walked over towards me because now at
       this time the gap is closing between me and the car and me
       and Mr. Harper. He gets out and he starts just talking to
       me about – he just starts spilling about his – that’s my
       brother in there – along those lines. I can’t sit here and tell
       you exactly what he said, but it was along the lines of that’s
       my brother in there and what’s going on.

       Q: And what was his demeanor like when he approached
       you and was saying that?

       A: I mean, he was very frantic. You know, he wants to
       know what’s going on. His demeanor, like, initially when I
       started approaching, walking to the car was – he was the
       first one out of the car quickly. He walked right over to me
       and just started, like, you know, asking me questions about
       – you know, that’s my brother; what’s going on. . . .


                                   - 12 -
J-A05005-16


          Q: So you said he got out of the car first. The other two
          males, where did they go?

          A: They exited the car. [Harper] was the first one out and
          up and towards me. And then the other two exited.

          Q: And when the other two exited the car, where did they
          go?

          A: They walked over towards us a little slower than Mr.
          Harper did that day.

                                       ...

          Q: Once the three males were walking towards you, what
          did you do next?

          A: Well, the first thing I did was I had contact with Mr.
          Harper and stopped him, slowed him down.

          I said, “Okay, stop.”

          Right then and there in the parking lot, I said, “Hey man,
          what’s going on; I don’t know what’s going on.”

          And I performed a pat down immediately on Mr. Harper.

N.T. Suppression Hearing, 9/26/14, at 38-42.

        With respect to the trial court’s legal conclusions, the trial court held

that:    Officer Ellis did not have reasonable suspicion to perform the initial

frisk of Harper; Officer Ellis did not have reasonable suspicion to detain

Harper following the initial frisk; and, Harper had a reasonable expectation

of privacy in the blue Mercury Marquis, which Officer Ellis violated when he

searched the vehicle without a warrant. Id. at 1-10.

        Following the trial court’s suppression order, the Commonwealth filed

an interlocutory appeal as of right, pursuant to Pennsylvania Rule of


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Appellate Procedure 311(d).8          On appeal, the Commonwealth raises two

claims:

           [1.] Did the [trial] court commit an error of law when it
           concluded that [Harper] had a reasonable expectation of
           privacy in a car, registered to someone else, in which he
           was a passenger?

           [2.] In any event, did the [trial] court err when it concluded
           that police lacked reasonable suspicion justifying a
           protective search of the car where the vehicle was parked at
           a hospital at which a shooting victim had just arrived, a
           hospital patron told security that one of the men in the car
           had a gun, and [Harper] exited the car and approached
           police in a frantic manner?

Commonwealth’s Brief at 3.

       “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”     Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H).           If the defendant

prevails in the underlying proceeding, we review the suppression court’s

order under the following standard and scope of review:

           When reviewing an [o]rder granting a motion to suppress
           we are required to determine whether the record supports
           the suppression court’s factual findings and whether the
           legal conclusions drawn by the suppression court from those
____________________________________________


8
  Within its notice of appeal, the Commonwealth properly certified that the
trial court’s suppression order will terminate or substantially handicap the
prosecution. Notice of Appeal, 11/5/14 at 1; see also Pa.R.A.P. 311(d).




                                          - 14 -
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        findings are accurate. In conducting our review, we may
        only examine the evidence introduced by [the defendant]
        along with any evidence introduced by the Commonwealth
        which remains uncontradicted. Our [standard] of review
        over the suppression court’s factual findings is limited in
        that if these findings are supported by the record we are
        bound by them.

Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008) (internal

citations omitted).    “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”     Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006).       Moreover, we note that our scope of review from a

suppression ruling is limited to the evidentiary record that was created at

the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      The Commonwealth first claims that the trial court erred when it held

that Harper had a reasonable expectation of privacy in the blue Mercury

Marquis automobile, as the vehicle was registered to another individual and

Harper produced no evidence that he had an expectation of privacy in the

vehicle. Commonwealth’s Brief at 8. We agree with the Commonwealth.

      As this Court has explained:

        Both Article 1, Section 8 of the Pennsylvania Constitution
        and the Fourth Amendment of the United States
        Constitution have been interpreted as protecting zones
        where an individual enjoys a reasonable expectation of
        privacy. Commonwealth v. Parker, 619 A.2d 735, 737
        (Pa. Super. 1993). While the Pennsylvania Constitution
        may be employed to guard individual privacy rights against
        unreasonable searches and seizures more zealously than
        the federal law, an individual’s expectation of privacy in the
        place searched must be established to invoke constitutional
        protection. Commonwealth v. Melilli, 555 A.2d 1254,

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        1258 (Pa. 1989). “[I]n order for a defendant accused of a
        possessory crime to prevail in a challenge to the search and
        seizure which provided the evidence used against him, he
        must, as a threshold matter, establish that he has a legally
        cognizable expectation of privacy in the premises which
        were searched.” Commonwealth v. Strickland, 707 A.2d
        531, 534 (Pa. Super. 1998), quoting Commonwealth v.
        Carlton, 701 A.2d 143, 145-146 (Pa. 1997).

Commonwealth v. Viall, 890 A.2d 419, 421-422 (Pa. Super. 2005)

(parallel citations omitted). “An expectation of privacy will be found to exist

when the individual exhibits an actual or subjective expectation of privacy

and that expectation is one that society is prepared to recognize as

reasonable.” Id. at 422.

      During the suppression hearing, both Harper and the Commonwealth

introduced the search warrant into evidence – and the search warrant

expressly declared that the registered owner of the blue Mercury Marquis

automobile    was   an   individual   named    Malcolm   Guillaume    Garland.

Application for Search Warrant and Affidavit, 1/2/14, at 1. Harper neither

testified at the suppression hearing nor introduced any evidence to

demonstrate that, contrary to the evidence of record, he:          owned the

vehicle, had permission to drive the vehicle, or otherwise had an expectation

of privacy in the vehicle. See N.T. Suppression Hearing, 9/26/14, at 1-73.

      As this Court has continuously held, where the Commonwealth has

come forward with evidence that the defendant was a passenger or a

non-owner of a vehicle, and where the defendant does not establish that he

owned the vehicle, had permission to drive the vehicle, or otherwise had an



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expectation of privacy in the vehicle, the defendant simply cannot satisfy his

burden of establishing that he had a protected privacy interest in the

automobile. See Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super.

2005) (holding:   where the defendant was the driver of a rental car, the

defendant did not have an expectation of privacy in the car because the

“return date [on the rental automobile] had expired, [the defendant] was

not the named lessee, the named lessee was not in the automobile, and [the

defendant] was not authorized to drive the automobile”); Commonwealth

v. Burton, 973 A.2d 428, 436 (Pa. Super. 2009) (en banc) (holding that the

defendant did not have an expectation of privacy in a vehicle, where he did

not own the vehicle and where he “offered no evidence to explain his

connection to the vehicle or his connection to the registered owner of the

vehicle”); Commonwealth v. Cruz, 21 A.3d 1247, 1251-1252 (Pa. Super.

2011) (holding that the defendant did not demonstrate that he had an

expectation of privacy in the vehicle he was driving at the time of the valid

stop because the defendant “presented no evidence that he owned the

vehicle, that it was registered in his name, or that he was using it with the

permission of the registered owner”).

      Thus, since Harper had the burden of “establish[ing] that he ha[d] a

legally cognizable expectation of privacy in the” automobile – and since

Harper did not satisfy this burden – we conclude that the trial court erred

when it held that Officer Ellis violated Harper’s constitutional rights by




                                    - 17 -
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conducting the warrantless search of the blue Mercury Marquis automobile.9

Viall, 890 A.2d at 421-422.

       Nevertheless, the above conclusion is not dispositive of this appeal.10

Certainly, even though Harper did not demonstrate that he possessed a

reasonable expectation of privacy in the vehicle, Harper also sought to

suppress the evidence because Officer Ellis did not have reasonable

suspicion to seize his person.        N.T. Suppression Hearing, 9/26/14, at 4-8;

see also Brendlin v. California, 551 U.S. 249, 259 (2007), quoting 6 W.

LaFave, SEARCH     AND   SEIZURE § 11.3(e) at 194, 195, and n.227 (4th ed. 2004

and Supp 2007) (noting that, even though a passenger does not have an

expectation of privacy in another person’s vehicle, “[i]f either the stopping of

____________________________________________


9
  Within the trial court’s opinion, the trial court declared that, since it “[did]
not find the testimony presented by Officer Ellis credible describing his
actions and statements in the hospital parking lot[,] . . . [t]he
Commonwealth fell far short of showing [Harper] had no reasonable
expectation of privacy and it failed to meet its burden that the Terry search
of the vehicle was legal.” Trial Court Opinion, 3/23/15, at 7. The trial
court’s statement is incorrect, given that both Harper and the
Commonwealth introduced the search warrant into evidence and the search
warrant declared that the registered owner of the blue Mercury Marquis
automobile was an individual named Malcolm Guillaume Garland.
Application for Search Warrant and Affidavit, 1/2/14, at 1. Therefore, and
regardless of Officer Ellis’ testimony, the documentary evidence in this case
demonstrated that Harper was not the registered owner of the vehicle.
10
   The Commonwealth claims that “[b]ecause [Harper] lacked a reasonable
expectation of privacy in the Mercury, the suppression order should be
reversed and there is no need to consider additional issues.”
Commonwealth’s Brief at 14. The Commonwealth’s contention is incorrect.
Brendlin v. California, 551 U.S. 249, 259 (2007).



                                          - 18 -
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the car, the length of the passenger’s detention thereafter, or the

passenger’s removal from it are unreasonable in a Fourth Amendment

sense, then surely the passenger has standing to             object to those

constitutional violations and to have suppressed any evidence found in the

car which is their fruit”).   Further, when the trial court granted Harper’s

suppression motion, it did so both because, in its view, Harper possessed an

expectation of privacy in the vehicle and the Commonwealth did not

establish that Officer Ellis had reasonable suspicion to subject Harper to an

investigatory detention. Trial Court Opinion, 3/23/15, at 7-10.

      The Commonwealth now argues that the trial court erred when it

determined that Officer Ellis lacked reasonable suspicion to seize Harper’s

person. We agree.

      As we explained, “[t]he Fourth Amendment to the [United States]

Constitution and Article I, Section 8 of [the Pennsylvania] Constitution

protect citizens from unreasonable searches and seizures. To safeguard this

right, courts require police to articulate the basis for their interaction with

citizens in [three] increasingly intrusive situations.”   Commonwealth v.

McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012).               Our Supreme Court

categorizes these three situations as follows:

        The first category, a mere encounter or request for
        information, does not need to be supported by any level of
        suspicion, and does not carry any official compulsion to stop
        or respond.      The second category, an investigative
        detention, derives from Terry v. Ohio and its progeny:
        such a detention is lawful if supported by reasonable


                                    - 19 -
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          suspicion because, although it subjects a suspect to a stop
          and a period of detention, it does not involve such coercive
          conditions as to constitute the functional equivalent of an
          arrest. The final category, the arrest or custodial detention,
          must be supported by probable cause.

Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).

        With respect to an investigative detention, our Supreme Court has

held:    “[to determine] whether an investigative ‘stop’ occurred, [a court

must] view[] all circumstances evidencing a show of authority or exercise of

force, including the demeanor of the police officer, the manner of expression

used by the      officer in addressing the citizen, and the content of the

interrogatories or statements. . . .            [T]he pivotal inquiry is whether,

considering all the facts and circumstances evidencing the exercise of force,

a   reasonable    man   would   have    thought      he    was   being   restrained.”

Commonwealth v. Mendenhall, 715 A.2d 1117, 1119-1120 (Pa. 1998)

(internal citations omitted).

        “To have reasonable suspicion, police officers need not personally

observe the illegal or suspicious conduct, but may rely upon the information

of third parties, including ‘tips’ from citizens.”        Commonwealth v. Lohr,

715 A.2d 459, 461 (Pa. Super. 1998).             With respect to these third-party

“tips,” we have held:

          Reasonable suspicion, like probable cause, is dependent
          upon both the content of information possessed by police
          and its degree of reliability. Both factors – quantity and
          quality – are considered in the “totality of the circumstances
          – the whole picture,” that must be taken into account when
          evaluating whether there is reasonable suspicion. Thus, if a
          tip has a relatively low degree of reliability, more


                                       - 20 -
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        information will be required to establish the requisite
        quantum of suspicion than would be required if the tip were
        reliable.

        When the underlying source of the officer’s information is an
        anonymous call, the tip should be treated with particular
        suspicion. However, a tip from an informer known to the
        police may carry enough indicia or reliability for the police
        to conduct an investigatory stop, even though the same tip
        from an anonymous informant would likely not have done
        so.

        Indeed, identified citizens who report their observations of
        criminal activity to police are assumed to be trustworthy, in
        the absence of special circumstances, since a known
        informant places himself at risk of prosecution for filing a
        false claim if the tip is untrue, whereas an unknown
        informant faces no such risk. When an identified third party
        provides information to the police, we must examine the
        specificity and reliability of the information provided. The
        information supplied by the informant must be specific
        enough to support reasonable suspicion that criminal
        activity is occurring. To determine whether the information
        provided is sufficient, we assess the information under the
        totality of the circumstances. The informer’s reliability,
        veracity, and basis of knowledge are all relevant factors in
        this analysis.


Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005)

(internal quotations and citations omitted).

      Finally, we note that, since reasonable suspicion depends upon the

totality of the circumstances, the facts and circumstances giving rise to (or

failing to give rise to) reasonable suspicion will vary depending upon the

specific facts of the case. In the case at bar, the facts of this case reveal

that a number of different factors are relevant to our reasonable suspicion

analysis. These factors include: the source of the original tip (i.e. whether


                                    - 21 -
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the source of the tip was an anonymous or a known individual); 11 whether

the tip was predictive of the individual’s future behavior; 12 the basis of the

tipster’s knowledge;13 the specificity of the tip;14 the investigating officer’s

training and experience;15 the physical proximity of the individual seized to

the location given by the tipster;16 the temporal proximity from the time of
____________________________________________


11
   See Barber, 889 A.2d at 593-594 (“[w]hen the underlying source of the
officer’s information is an anonymous call, the tip should be treated with
particular suspicion. However, a tip from an informer known to the police
may carry enough indicia or reliability for the police to conduct an
investigatory stop, even though the same tip from an anonymous informant
would likely not have done so).”
12
   Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (“[w]here .
. . the source of the information given to the officers is unknown, the range
of details provided and the prediction of future behavior are particularly
significant, as is corroboration by independent police work”).
13
   Commonwealth v. Martin, 705 A.2d 887, 892 (Pa. Super. 1997) (“[i]n
analyzing an anonymous tip, we must determine whether under the “totality
of the circumstances” the informant's tip established the necessary
reasonable suspicion that criminal activity was afoot. Critical factors to be
considered are the informant's veracity, reliability and basis of knowledge”)
(internal citations omitted).
14
     See Zhahir, 751 A.2d at 1157.
15
   Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (“[t]he
determination of whether an officer had reasonable suspicion that criminality
was afoot so as to justify an investigatory detention is an objective one,
which must be considered in light of the totality of the circumstances. In
assessing the totality of the circumstances, a court must give weight to the
inferences that a police officer may draw through training and experience”)
(internal quotations and citations omitted).
16
  Commonwealth v. Walls, 53 A.3d 889, 894 (Pa. Super. 2012) (holding
that the police had reasonable suspicion to believe the defendant was
(Footnote Continued Next Page)


                                          - 22 -
J-A05005-16



the incident to the time of the tipster’s report;17 the temporal proximity from

the time of the receipt of the information to the time the officer came upon

the individual seized;18 whether, before the seizure, the officer witnessed the

individual act suspiciously or irregularly or whether the officer witnessed the

individual act normally;19 the time and place of the stop;20 police




                       _______________________
(Footnote Continued)

involved in criminal activity because of a number of factors, including his
“proximity to the location described in the flash, and [the defendant’s]
matching the description of the suspect”).
17
   Commonwealth v. Wilson, 662 A.2d 293, 297 (Pa. Super. 1993) (“[i]n
those cases reviewed by [the Superior] Court, where investigatory stops
have been validated, the police have acted on the information received from
a confidential informant or anonymous tipster almost immediately after the
receipt of the information leading one justifiably and reasonably to suspect
that criminal activity was afoot”).
18
     Id.
19
   Commonwealth v. Kearney, 601 A.2d 346, 347-348 (Pa. Super. 1992)
(holding that the “reasonable suspicion . . . standard is met if the police
officer’s reasonable and articulable belief that criminal activity was afoot is
linked with his observation of suspicious or irregular behavior on behalf of
the particular defendant stopped”) (internal citations and quotations
omitted).
20
   In the Interest of S.D., 633 A.2d 172, 174 (Pa. Super. 1993) (holding
that “[t]he time and place of the encounter in this case provided an
independent basis for the officer to act on the informant’s tip,” where the
“events took place [in] an area of high drug incidence . . . at 5:25 in the
morning”).




                                           - 23 -
J-A05005-16



corroboration of the tip;21 and, police corroboration of any alleged criminal

activity.22

       We will analyze each of the above factors seriatim.

       In the case at bar, Lieutenant Johnson (a hospital security guard)

informed Officer Ellis that, through an anonymous tipster, Lieutenant

Johnson learned that “there were three males that just left the [emergency

room],” that one of the three males had a gun, and that the three males

were in a blue Mercury automobile that was in the parking lot.              N.T.

Suppression Hearing, 9/26/14, at 36.               There is no evidence that the

anonymous tipster stayed at the scene after giving the tip to the security

guard or that the anonymous tipster was ever identified; further, there is no

evidence that Lieutenant Johnson, as a hospital security guard, was anything

other than a private individual acting in a private capacity.

       Nevertheless, the Commonwealth claims that the anonymous tip in

this case was more reliable because the tip was made in person, as opposed

____________________________________________


21
   Commonwealth v. Chase, 575 A.2d 574, 577 (Pa. Super. 1990)
(holding that, even though the radio broadcast a “general description” of “a
black man in a blue shirt,” the police had probable cause to arrest the
defendant, in part, because the radio broadcast the individual’s location, and
the police corroborated the fact that the defendant was in “the precise
locality” described in the broadcast).
22
   Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (“[a]n
anonymous tip, corroborated by independent police investigation, may
exhibit sufficient indicia of reliability to supply reasonable suspicion for an
investigatory stop”).



                                          - 24 -
J-A05005-16



to   telephonically.     Commonwealth’s         Brief    at     15.    In   support,   the

Commonwealth cites to our opinion in Commonwealth v. Williams, 980

A.2d 667 (Pa. Super. 2009). There, an officer “had just received a radio call

advising of a robbery in progress, observed [the defendant] in the

immediate vicinity of the reported robbery attempting to avoid two female

officers   who    were   approaching   him      on      foot,    and   encountered     [an

anonymous] witness who was pointing at [the defendant] yelling, ‘He has

got a gun.’” Id. at 671. As we held in Williams, even though the witness

who yelled “He has got a gun” was anonymous, the tip was more reliable

than a typical, uncorroborated, anonymous telephone tip. We explained:

           The situation here . . . is distinguishable [from an
           anonymous telephone call to the police] in that the tip was
           made in person, giving [the officer] an opportunity to
           observe the witness’ demeanor and assess his credibility in
           light of his past experience with investigating crimes. Such
           a tip must be given more weight than a mere anonymous
           phone call because a person who knowingly gives false
           information to any law enforcement officer with intent to
           implicate another may be held criminally liable [under 18
           Pa.C.S.A. § 4906].

Id. at 671-671 (internal quotations omitted).

       The rule articulated in Williams does not apply to the case at bar. In

this case, even though the anonymous tipster informed Lieutenant Johnson

in person, Lieutenant Johnson was not a law enforcement officer and

Lieutenant Johnson did not testify at the suppression hearing. Thus, since

Lieutenant Johnson was not a law enforcement officer, the anonymous

tipster did not risk prosecution under 18 Pa.C.S.A. § 4906 and, since


                                       - 25 -
J-A05005-16



Lieutenant Johnson did not testify at the suppression hearing, there was no

testimony    or   cross-examination    regarding    the   lieutenant’s   skill   at

“observ[ing] the [tipster’s] demeanor and assess[ing] his credibility in light

of [the lieutenant’s] past experience with investigating crimes.” Williams,

980 A.2d at 671-672.        As such, the twin rationales that support the

Williams rule are not found in the case at bar and we must conclude that

the anonymous tip in this case is entitled to no greater weight than a typical,

anonymous telephone tip to the police.

      Thus, in this case, we must conclude that the source of the tip was a

wholly anonymous person. Further, since the anonymous tip did not predict

Harper’s future actions, we must conclude that, at the time Officer Ellis was

informed of the anonymous tip, the tip “carrie[d] a low degree of reliability.”

Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (“[b]ecause

an anonymous tip typically carries a low degree of reliability, more

information is usually required before investigating officers develop the

reasonable suspicion needed to support an investigatory stop of a suspect”).

      Regarding the source of the tipster’s knowledge, we note that the

uncontradicted evidence in this case establishes that the tipster told

Lieutenant Johnson that he personally witnessed “one of the three males,” in

the hospital, with a gun.     See N.T. Suppression Hearing, 9/26/14, at 68

(“[Q:] [Officer Ellis, w]e talked a little bit earlier on cross-examination that –

do you remember, going back to [your preliminary hearing testimony,] ‘In

fact, your information from the security guard was that it wasn’t him that

                                      - 26 -
J-A05005-16



observed the gun; it was a patron inside the hospital – correct[?]’ . . . . [A:]

Yes, and I responded yes”).     It is true that, in this case, the tipster was

anonymous and Officer Ellis’ testimony regarding the tip constituted double

hearsay.   However, as a general matter, we note that a tipster’s asserted

“personal observation” typically imbues the tip with greater reliability than

an instance where, for example, the tipster admits that he learned of the

information through another person.           See, e.g., Commonwealth v.

Williams, 444 A.2d 1278, 1280 (Pa. Super. 1982) (distinguishing between

an informant’s tip that is based upon “personal knowledge” and a tip that is

based upon “common rumor or report”).

      With respect to the specificity of the tip, the tip in this case was

moderately specific, given that the tipster informed Lieutenant Johnson that

“there were three males that just left the [emergency room],” that one of

the three males had a gun, and that the three males were presently in a

blue Mercury automobile that was in the parking lot. It is true that this tip

does not describe the race, height, body type, or clothing of any of the three

individuals, does not predict any future behavior of the three individuals, and

does not specify the particular individual who possessed the weapon.

Nevertheless, the uncontradicted evidence in this case demonstrates that

Officer Ellis was able to look out onto the “smaller” emergency room parking

lot and readily discover a blue Mercury Marquis automobile with three

individuals inside. N.T. Suppression Hearing, 9/26/14, at 37-39 and 78.




                                     - 27 -
J-A05005-16



      The next factor in our totality of the circumstances analysis is the

investigating officer’s training and experience. At the time of the incident,

Officer Ellis was a ten-year veteran of the Philadelphia Police force, had been

specially selected to be a member of the Narcotics Enforcement Team, and,

for the prior six years, had served as a member of the special Narcotics

Enforcement Team. Id. at 32-33. Therefore, the uncontradicted evidence in

this case demonstrates that, at the time of the incident, Officer Ellis had

extensive police training and experience.

      Next, we examine the physical proximity of Harper to the location

given by the tipster. Here, the tipster informed Lieutenant Johnson that the

“male with a gun” was accompanied by two other males and that the three

men were inside of a blue Mercury automobile that was in the hospital

parking lot. Id. at 36. It is uncontradicted that, when Officer Ellis walked

out to the hospital parking lot, Officer Ellis discovered Harper sitting in a

blue Mercury automobile with two other men, and that the vehicle was

parked in the hospital parking lot.    Id. at 38-39.   Therefore, in this case,

Harper was in the precise location that the tipster declared.

      As to the temporal proximity from the time of the incident to the time

of the tipster’s report and from the time of the tipster’s report until the time

the officer came upon Harper, the uncontradicted evidence demonstrates

that the temporal proximity between all of the relevant events in this case

was close. Indeed, Officer Ellis testified that, immediately after he entered

the emergency room, Lieutenant Johnson told him “that there were three

                                      - 28 -
J-A05005-16



males that just left the ER,” that one of the three males had a gun, and that

the three males were presently in a blue Mercury automobile that was in the

parking lot.    Id. at 36.      Officer Ellis testified that, after he received this

information, he “turned around and went outside and right to the parking

lot.”   Id.    Officer Ellis testified that he then scanned the lot for a blue

Mercury automobile and was able to discern a blue Mercury automobile with

three individuals inside.       Id. at 38-39.      Officer Ellis testified that, after

locating the vehicle, he walked toward the automobile and, “immediately

upon [him] walking over toward that direction that’s when [] Harper exited

the vehicle.”    Id. at 39.      As such, all of the relevant events in this case

occurred in close temporal proximity to one another.

        Next, we consider the factor of whether, prior to the seizure, the

officer witnessed the individual act suspiciously or irregularly. However, to

analyze this factor, we must determine when Officer Ellis seized Harper.23

        As noted above, after Officer Ellis received the tip, the officer went out

into the parking lot, scanned the lot, and noticed a blue Mercury automobile

with three people inside. Id. at 36-39. Officer Ellis testified that, as soon as

____________________________________________


23
    Within the trial court’s opinion to this Court, the trial court held that
Harper was seized at the moment of the frisk. Trial Court Opinion, 3/23/15,
at 7 (“[Officer] Ellis performed a Terry [f]risk and search upon his first
contact with [Harper]”). As we will discuss in the body of this memorandum,
we conclude that Harper was seized seconds prior to the frisk, when Officer
Ellis got close enough to Harper to tell Harper “[o]kay, stop.”          N.T.
Suppression Hearing, 9/26/14, at 41.



                                          - 29 -
J-A05005-16



he turned to walk in the direction of the Mercury, Harper exited the vehicle,

frantically approached the officers, and informed the officers that he, Harper,

was the brother of the shooting victim inside the hospital. Id. at 38-42. It

is uncontradicted that Harper initiated the contact with the officers, that

Harper spoke to the officers before he was spoken to, and that, before

Officer Ellis said anything, Harper identified himself as the brother of the

shooting victim. Id. Further, there is no evidence that, when Officer Ellis

and Harper were walking towards one other, Officer Ellis had his weapon

pointed at Harper, demonstrated any show of authority, or acted in such a

manner as to demonstrate to a reasonable person that Harper was being

restrained.    Id.; see also Mendenhall, 715 A.2d at 1119-1120.         To be

sure, the uncontradicted evidence in this case demonstrates that Harper

freely approached Officer Ellis.

      As Officer Ellis testified, after Harper frantically declared that he was

the brother of the shooting victim, Officer Ellis got close enough to Harper to

say “[o]kay, stop,” and Officer Ellis then performed a Terry pat down on

Harper’s person. N.T. Suppression Hearing, 9/26/14, at 41.

      Therefore, the uncontradicted evidence in this case demonstrates that

Harper was not seized until after he frantically approached Officer Ellis and

declared that he was the brother of the shooting victim.        As such, with

respect to the behavior of Harper prior to the seizure, we note that it is

uncontradicted that Harper acted “frantically” – and not normally – prior to

the seizure.

                                    - 30 -
J-A05005-16



      With respect to the next factor – the time and place of the stop – we

observe that the stop occurred in the afternoon and at a hospital where a

homicide victim had been taken.

      Finally, we analyze police corroboration of the tip and police

corroboration of any alleged criminal activity.        As has already been

discussed, on the day in question, Officer Ellis traveled to the Albert Einstein

Hospital emergency room because a gunshot victim had been taken to

hospital for treatment. As Officer Ellis testified, immediately upon entering

the emergency room, Lieutenant Johnson informed Officer Ellis that “there

were three males that just left the [emergency room],” that one of the three

males had a gun, and that the three males were in a blue Mercury

automobile that was in the parking lot. N.T. Suppression Hearing, 9/26/14,

at 36. It is uncontradicted that, almost immediately after being informed of

the tip, Officer Ellis partially corroborated the tip by identifying three men,

inside of a blue Mercury automobile, which was parked in the hospital

parking lot.

      Further, as both this Court and the trial court held, before the police

initiated contact with Harper, Harper exited the vehicle and “frantically”

identified himself as the brother of the shooting victim.       Given that the

anonymous tipster identified one of the “three males that just left the

[emergency room]” as possessing a gun – and that Harper frantically

identified himself as the brother of a gunshot victim who was being treated

in the emergency room – we conclude that Harper’s own statement and

                                     - 31 -
J-A05005-16



actions further partially corroborated the tip.        Stated another way, by

declaring (truthfully or not) that he was the brother of the gunshot victim

who was being treated in the emergency room, Harper’s own statement

linked him to the report of a “man with a gun” who had “just left the

[emergency room].”

      Viewing the totality of “the evidence introduced by [the defendant]

along with any evidence introduced by the Commonwealth which remains

uncontradicted,” we conclude that Officer Ellis had reasonable suspicion to

believe that Harper “had something to do” with the shooting incident

involving his brother and that he was armed.             See N.T. Suppression

Hearing, 9/26/14, at 58 and 63.          Certainly, even though the tip was

anonymous and even though the tip initially “carrie[d] a low degree of

reliability,” the totality of the circumstances in this case establish that Officer

Ellis had reasonable suspicion to not only perform a Terry frisk of Harper,

but to then detain Harper following the Terry frisk, so that Officer Ellis could

verify Harper’s identity.    To reiterate, these circumstances include:        the

asserted, personal basis of the tipster’s knowledge; the moderate specificity

of the tip, details of which were ultimately corroborated by Officer Ellis;

Officer Ellis’ extensive police training and experience; the fact that Harper

was located in the precise location and accompanied by the same number of

people that the tipster declared; the close temporal proximity of all relevant

events in this case; Harper’s “frantic” and irregular behavior prior to the

seizure; the fact that the stop occurred in the parking lot of a hospital

                                      - 32 -
J-A05005-16



emergency room, where a shooting victim was being treated; the fact that,

prior to the seizure, Harper linked himself to the gunshot victim by

“frantically” telling Officer Ellis that he was the brother of the gunshot

victim; and, the fact that the entire tip revolved around a “man with a gun”

– who, it was reported, had been in a hospital emergency room where a

gunshot victim was being treated.

      Given the totality of the circumstances in this case, we conclude that

Officer Ellis had reasonable suspicion to perform a Terry frisk of Harper and

to then detain Harper following the Terry frisk, so that the officer could

verify Harper’s identity. We conclude that the trial court erred in concluding

otherwise.

      Further, since Harper did not have an expectation of privacy in the

vehicle, we conclude that the trial court erred when it granted Harper’s

motion to suppress the physical evidence in this case.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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