J-S50024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

EDWARD O’BRYANT

                            Appellant                        No. 1512 EDA 2014


             Appeal from the Judgment of Sentence April 15, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009641-2013


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                    FILED AUGUST 26, 2015

       Appellant,    Edward     O’Bryant,      appeals   from   the   April    15,   2014

aggregate judgment of sentence of four to eight years’ imprisonment,

imposed after he was found guilty of one count each of possession of a

firearm prohibited, possession of a firearm with the manufacturer’s number

altered, firearms not to be carried without a license, and carrying a firearm

in public in Philadelphia.1 After careful review, we affirm.

       The trial court summarized the following factual history of this case,

through its findings of fact from its suppression hearing, as follows.



____________________________________________
1
   18 Pa.C.S.A.        §§    6105(a)(1),       6110.2(a),   6106(a)(1),       and    6108,
respectively.
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              1.    On July 9, 201[3], at approximately 7:10 p.m.,
              Officer Burgoon[2] of the Philadelphia Police
              Department was on a tour of duty on the 5300 block
              of Sylvester Street in the City of Philadelphia.
              Officer Burgoon received a radio call for a male with
              a gun who was being chased by fellow officers on
              foot.

              2.    The flash information was for a black male with
              a white shirt and dark colored pants.

              3.    Officers Quinn and Baycos arrived on the scene
              before Officer Burgoon and ended up chasing a male
              who appeared to fit the above flash.

              4.    Initially, Officer Burgoon was in an unmarked
              car and then on foot during this tour of duty. He
              was originally on his way out to conduct surveillance
              at 1600 Cheltenham.

              5.    When he first arrived on the scene in the
              unmarked car, he saw the fellow officers running
              down the street chasing somebody. At that time, he
              switched over to the actual northeast radio band (for
              the 15th and 2nd District police radio band) and
              received the detailed flash information.

              6.    He then pulled the unmarked vehicle over and
              went out to look for the suspect on foot in the
              alleyways and on the side streets.

              7.    The officer did not observe anyone else in the
              general vicinity who was dressed similarly to
              [Appellant] or who otherwise matched the above
              flash description. Meanwhile, he located the suspect
              ducked down and hiding suspiciously by a parked car
              near or under a tree. He was ducked down lower
              than the car frame so as to avoid being seen by the
              police.


____________________________________________
2
    Officer Burgoon’s first name does not appear in the certified record.



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          8.    The officer saw that the man fit the above
          flash. He had been crouching down and hiding for
          quite a while.

          9.     On the date of the incident, Officer Burgoon
          had been a member of the force for 11 years and
          assigned to the 15th district for two years. This is an
          area known for a lot of robberies and he has
          personally responded to police calls in the general
          vicinity anywhere from 50 to 100 times.

          10. The area is also known [as] a high drug crime
          area.

          11. The suspect then stood up, again after
          crouching for some time, and proceeded to walk
          down the alleyway.       Sergeant Cerruti, a fellow
          officer, was operating a marked car and was coming
          around the backend of the alleyway at that time.
          Sergeant Cerruti then stopped [Appellant], at which
          point Officer Burgoon conducted a frisk.

          12. During a protective frisk over the clothes of
          [Appellant], Officer Burgoon felt a hard metallic
          object which he immediately recognized as a firearm.

          13. He      then    recovered   a   revolver   from
          [Appellant]’s rightside waistband. The gun was a
          blue steel 357 revolver. It was loaded with six live
          rounds and had a serial number scratched off which
          was unreadable.

          14. It was placed on property receipt number
          3107542.

          15. [Appellant] did not have a valid license to carry
          and even told the officer as much on the date in
          question. The [b]allistics report indicates that the
          firearm is operable. It had gunshot residue present
          in all chambers and the serial number was
          obliterated.

          16. Additionally, [Appellant] was not eligible to
          have a license to carry a firearm in light of prior

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              convictions which would disqualify him for that
              purpose.

Trial Court Opinion, 8/11/14, at 2-5.

       On August 6, 2013, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses. Appellant sought to suppress

the firearm.3 On February 26, 2014, the trial court conducted a suppression

hearing, at which Officer Burgoon testified.        Appellant did not present any

evidence.      At the conclusion of said hearing, the trial court denied

Appellant’s suppression motion.           Immediately following the denial of the

motion, Appellant proceeded to a stipulated bench trial, at the conclusion of

which the trial court found Appellant guilty of all charges. On April 15, 2014,

the trial court imposed an aggregate sentence of four to eight years’

imprisonment.4 Appellant did not file a post-sentence motion. On May 15,

2014, Appellant filed a timely notice of appeal.5


____________________________________________
3
 Neither the certified record nor the trial court’s docket contains an entry for
a written suppression motion. However, Pennsylvania Rule of Criminal
Procedure 575 permits oral motions at the discretion of the trial court. See
generally Pa.R.Crim.P. 575(A)(1) (stating, “[a]ll motions shall be in writing,
except as permitted by the court or when made in open court during a trial
or hearing[]”). As all parties and the trial court agree that there was a
motion to suppress in this case, we presume that it was an oral motion.
See N.T., 2/26/14, at 4 (stating the basis for suppression as “the officers did
not have reasonable suspicion nor probable cause to stop [Appellant] and
conduct a search[]”).
4
  Specifically, the trial court sentenced Appellant to four to eight years’
imprisonment for each count of possession of a firearm prohibited and
possession of a firearm with the manufacturer’s number altered. The trial
(Footnote Continued Next Page)


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        On appeal, Appellant raises one issue for our review.

             I.        Did the [trial] court err when it found that
                       there was reasonable suspicion of criminal
                       activity to justify a Terry[6] stop of [Appellant],
                       which resulted in the recovery of a firearm?

Appellant’s Brief at 3.

        We begin by noting our well-established standard of review over

challenges to the denial of suppression motions.

             We may consider only the Commonwealth’s evidence
             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 record supports
             the factual findings of the trial court, we are bound
             by those facts and may reverse only if the legal
             conclusions drawn therefrom are in error.          An
             appellate court, of course, is not bound by the
             suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

In this case, Appellant argues that the police lacked the reasonable suspicion

that    he   was   involved       in   criminal   activity,   rendering   the   seizure

unconstitutional. Appellant’s Brief at 14-17. The Commonwealth counters

                       _______________________
(Footnote Continued)

court imposed a sentence of three-and-one-half to seven years’
imprisonment for firearms not to be carried without a license. Finally, the
trial court sentenced Appellant to two-and-one-half to five years’
imprisonment for carrying a firearm in public in Philadelphia. All sentences
were to run concurrently to each other.
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
6
    Terry v. Ohio, 392 U.S. 1 (1968).



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that because Appellant matched the flash description and intentionally hid

from law enforcement in a high crime area, Appellant’s constitutional rights

were not violated. Commonwealth’s Brief at 6.

                  The Fourth Amendment of the Federal
           Constitution provides, “[t]he right of the people to be
           secure in their persons, houses, papers, and effects,
           against unreasonable searches and seizures, shall
           not be violated ….”        U.S. Const. amend. IV.
           Likewise, Article I, Section 8 of the Pennsylvania
           Constitution states, “[t]he people shall be secure in
           their persons, houses, papers and possessions from
           unreasonable searches and seizures ….” Pa. Const.
           Art. I, § 8. Under Pennsylvania law, there are three
           levels of encounter that aid courts in conducting
           search and seizure analyses.

                 The first of these is a “mere encounter” (or
                 request for information) which need not be
                 supported by any level of suspicion, but carries
                 no official compulsion to stop or respond. The
                 second, an “investigative detention” must be
                 supported by reasonable suspicion; it subjects
                 a suspect to a stop and period of detention,
                 but does not involve such coercive conditions
                 as to constitute the functional equivalent of
                 arrest.      Finally, an arrest or “custodial
                 detention” must be supported by probable
                 cause.


           Commonwealth v. Williams, 73 A.3d 609, 613
           (Pa. Super. 2013) (citation omitted), appeal denied,
           87 A.3d 320 (Pa. 2014).

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en

banc), appeal denied, --- A.3d ---, 641 EAL 2014 (Pa. 2015). In this case,

Appellant and the Commonwealth agree that the encounter in question was

an investigative detention and therefore the police were required to have


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reasonable suspicion that criminal activity was afoot to render the seizure

constitutional. Appellant’s Brief at 12; Commonwealth’s Brief at 7.

                     “The   Fourth    Amendment        permits   brief
              investigative stops … when a law enforcement officer
              has a particularized and objective basis for
              suspecting the particular person stopped of criminal
              activity.” Navarette v. California, 134 S. Ct. 1683,
              1687 (2014).      It is axiomatic that to establish
              reasonable suspicion, an officer “must be able to
              articulate something more than an inchoate and
              unparticularized suspicion or hunch.” United States
              v. Sokolow, 490 U.S. 1, 7 (1989) (internal
              quotation marks and citation omitted). Unlike the
              other     amendments       pertaining      to   criminal
              proceedings, the Fourth Amendment is unique as it
              has standards built into its text, i.e., reasonableness
              and probable cause. See generally U.S. Const.
              amend. IV. However, as the Supreme Court has
              long recognized, Terry v. Ohio, 392 U.S. 1 (1968) is
              an exception to the textual standard of probable
              cause. Florida v. Royer, 460 U.S. 491, 498 (1983).
              A suppression court is required to “take[] into
              account the totality of the circumstances—the whole
              picture.”    Navarette, supra (internal quotation
              marks and citation omitted). When conducting a
              Terry analysis, it is incumbent on the suppression
              court to inquire, based on all of the circumstances
              known to the officer ex ante, whether an objective
              basis for the seizure was present.            Adams v.
              Williams, 407 U.S. 143, 146 (1972).

Id. at 768-769 (footnote omitted).7

       In this case, Officer Burgoon testified that at approximately 7:10 p.m.

he was around the 5300 block of Sylvester Street when he heard a radio


____________________________________________
7
 Appellant does not challenge the constitutionality of the subsequent frisk of
Appellant’s person that occurred after the seizure was effectuated.



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J-S50024-15


flash describing a man with a gun.     N.T., 2/26/14, at 6.    Specifically, the

description was “a black male, white tee shirt, [and] dark colored pants.”

Id. at 8. Officer Burgoon saw officers chasing someone down the street on

foot as he arrived on the scene, though he could not tell who it was they

were chasing. Id. at 11-12. Officer Burgoon got out of his car and began to

look for the suspect on side streets and alleyways in the vicinity. Id. at 11.

Officer Burgoon saw Appellant ducked down between a parked car and a

tree.    Id.    Specifically, Officer Burgoon observed that Appellant was

crouched down lower than the frame of the car.        Id.     He observed that

Appellant generally matched the description of the flash, as he was a black

male wearing a white t-shirt and blue jeans. Id. Officer Burgoon testified

that in this particular area there were “a lot of robberies.”       Id. at 13.

Furthermore, Officer Burgoon had personally responded to 50 to 100 radio

calls from that area, as well as “constant complaints of drug sales[.]” Id. at

14. Officer Burgoon approached Appellant, and as he did, Appellant stood

up, crossed the street, and walked down an alleyway. Id. At the other end

of said alleyway, Sergeant Cerutti got out of his own marked police car, saw

Appellant and Officer Burgoon behind him and stopped Appellant. Id. at 14-

15. Officer Burgoon performed a pat-down, resulting in the recovery of the

firearm in question from Appellant’s waistband. Id. at 15.

        As noted above, when reviewing the trial court’s conclusion that the

police had reasonable suspicion of criminal activity, we solely look at the


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factors that were present and known to the officer ex ante. Carter, supra

at 769. In this case, Officer Burgoon responded to a radio description of a

black male wearing a white t-shirt and dark colored pants with a gun. Id. at

6, 8. Officer Burgoon then observed Appellant, who matched the description

of the flash, hiding from police, crouched down behind a parked car. Id. at

11. This all took place in a high crime area. Id. at 13.

      After careful review, we conclude the seizure was constitutional. This

Court has consistently noted that an anonymous tip must be independently

corroborated     by   police   before    a     seizure    may    be     effectuated.

Commonwealth v. Ranson, 103 A.3d 73, 78 (Pa. Super. 2014), appeal

denied, --- A.3d ---, 2015 WL 3938036 (Pa. 2015). Here, Officer Burgoon

observed Appellant, who matched the flash description of the suspect, hiding

behind the frame of a parked car under a tree, in a high-crime area. In our

view, this supplied Officer Burgoon with sufficient corroboration to effectuate

the   seizure.    See   Carter,   supra       at   774   (concluding   seizure   was

constitutional, in part, because the defendant acted evasively by “walking

away from the known drug corner whenever the officer’s passed by it[]”);

Commonwealth v. Walls, 53 A.3d 889, 894-895 (Pa. Super. 2012)

(concluding seizure was constitutional where police observed the defendant

matching the flash description of a suspect and where the defendant fled

upon observing the police).




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      Appellant’s argument that the seizure in this case was unconstitutional

appears to focus on what the police did not observe. Appellant points out

that although Appellant was crouched down behind a car, “there was no

testimony that Appellant was sweating … [or] was nervous.”          Appellant’s

Brief at 14. Appellant also points out that it was not late at night and Officer

Burgoon never saw Appellant specifically being chased by the other officers

when he arrived on the scene. Id. Appellant additionally notes that he did

not flee from the police, instead he walked away. Id. This line of argument

demonstrates Appellant’s misunderstanding of Terry. As noted above, the

constitutional inquiry focuses on the factors that were known to the officer.

Carter, supra. Appellant’s argument requires the trial court and this Court

to focus, at least in part, on what the officer did not know or observe. As

made plain by our cases, this mode of analysis would contradict the totality

of the circumstances analysis required by the Fourth Amendment.            See

generally id. at 768-769.

      We also disagree with Appellant’s argument that “[i]f crouching on a

residential street is objective reasonable suspicion of criminal activity then

any person lighting a cigarette, playing hide and seek on a summer night,

play hiding from their children, checking a scratch on their car, or any other

reason is subject to a search of their person.” Appellant’s Brief at 15. As we

have explained, it is Appellant’s matching the flash description in addition

to his evasive behavior in a high-crime area that made the seizure


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J-S50024-15


constitutional. Also, as we recently explained in Carter, by requiring only

reasonable suspicion to effectuate a seizure like the one in this case, “Terry,

by its very nature, ‘accepts the risk that officers may stop innocent people.’”

Carter, supra at 769 n.4, quoting Illinois v. Wardlow, 528 U.S. 119, 126

(2000). Based on all of the aforementioned considerations, we agree with

the trial court that Officer Burgoon possessed the required reasonable

suspicion sufficient to effectuate his seizure of Appellant.     As a result,

Appellant’s Fourth Amendment rights were not violated, and the trial court

correctly denied his motion to suppress. See Gary, supra.

      Based on the foregoing, we conclude Appellant’s sole issue on appeal

is devoid of merit. Accordingly, the trial court’s April 15, 2014 judgment of

sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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