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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
KEITH WHALEY,                             :         No. 1781 EDA 2015
                                          :
                          Appellant       :


              Appeal from the Judgment of Sentence, June 11, 2015,
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-0013260-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 26, 2016

      Keith Whaley appeals from the judgment of sentence entered by the

Court of Common Pleas of Philadelphia County on June 11, 2015, following

his conviction in a waiver trial of firearms not to be carried without a license;

persons not to possess, use, manufacture, control, sell or transfer firearms;

and carrying firearms on public streets or public property in Philadelphia.1

We reverse.

      The suppression court summarized the procedural and factual history

as follows:

              I.    OVERVIEW AND PROCEDURAL HISTORY

              . . . . This appeal stems from a search of [appellant]
              and seizure of an unlicensed gun. On October 5,

1
  18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6105(a)(1), and 18 Pa.C.S.A.
§ 6108, respectively.
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          2014, Philadelphia police officers received a radio call
          with flash information describing [appellant] and
          another burglary suspect at 4850 North 7th Street,
          Philadelphia, Pennsylvania. [Appellant] was frisked
          after matching the flash description near the stated
          location and displaying suspicious and furtive
          behavior. During the frisk, the police officer felt the
          handle of a gun in [appellant’s] right pocket and
          subsequently discovered a revolver.               Upon
          recovering the item, the officer arrested [appellant]
          after which he was charged with Firearms Not to be
          Carried Without License (F3), Possession of Firearms
          Prohibited (M1), and Carrying a Firearm on Public
          Streets in Philadelphia (M1).

                 On January 20, 2015, [appellant] filed a Motion
          to Suppress in which he sought to suppress physical
          evidence. On March 24, 2015, this court held a
          hearing on the matter and at the conclusion of the
          hearing denied [appellant’s] Motion to Suppress. On
          that same day, a non-jury trial was held at which
          [appellant] was found guilty of the aforementioned
          charges.    A pre-sentence investigation was also
          ordered. On June 11, 2015, this court sentenced
          [appellant] to eleven-and-a-half (11 ½) to
          twenty-three (23) months of incarceration plus
          five (5) years reporting probation at the State
          Correctional Institution with credit for time served.

          ....

          II.    FACTUAL HISTORY

                 Philadelphia Police Officer Eric Girill, assigned
          to the 35th District, testified that on October 5, 2014,
          at approximately 6:16 p.m., he was fully uniformed
          on a routine patrol with his partner, Officer McClain,
          in a marked police vehicle when he received a flash
          radio call that two black males in dark clothing were
          breaking into the rear of the residence at 4850 North
          7th Street, Philadelphia, Pennsylvania. (N.T. 3/24/15
          pp. 4, 5, 6, 7, 12, 14).[Footnote 4] At the time of
          trial, Officer Girill had been a police officer for
          nine (9) years. (N.T. 3/24/15 p. 5). He had been at


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          the 35th district for five (5) months and the
          18th district prior to that time. Id. At the time of
          the radio call, Officer Girill and his partner were no
          more than three (3) blocks away from the location.
          (N.T. 3/24/15 p. 7). Both officers proceeded to
          4850 North 7th Street with sirens turned on and
          arrived in less than one (1) minute. (N.T. 3/24/15
          pp. 17, 22). Officer Girill also testified that prior to
          entering the alleyway, the sirens were turned off.
          (N.T. 3/24/15 p. 22).

                [Footnote 4] All references to the record
                refer to the transcript of the suppression
                hearing and trial recorded on March 24,
                2015.

                 Officer Girill testified that it was daylight when
          he and his partner arrived at the above location.
          (N.T. 3/24/15 p. 11).           Both officers proceeded
          directly to the rear of the residence in question.
          (N.T. 3/24/15 p. 7). As Officer Girill drove through,
          he observed two (2) males walking southbound in
          the alleyway close to 4850 North 7th Street. (N.T.
          3/24/15 pp. 7, 9).            The officer described the
          alleyway as a “typical row home alleyway,”
          twenty[-]five (25) to thirty (30) feet in length, with
          row homes on both sides of the alleyway. (N.T.
          3/24/15 p. 9). Further, the officer testified that the
          width of the alleyway would allow two (2) cars to be
          parked parallel to each other (N.T. 3/24/15 pp. 15,
          16).

                Upon seeing the two (2) males, Officer Girill
          ordered them to stop. (N.T. 3/24/15 p. 7). One
          male stopped and the other male, [appellant]
          continued to walk southbound with his hands in his
          pocket. Id. Officer Girill then ordered [appellant] to
          stop.   Id.     In response, [appellant] turned and
          concealed the right side of his body behind a parked
          car located behind another residence half-way down
          the alleyway. (N.T. 3/24/15 pp. 7, 8). Officer Girill
          later testified, he thought [appellant] was hiding a
          weapon due to the numerous calls received within a
          month of a robbery, a person with a gun including a


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           point-of-gun robbery, and similar activity.        (N.T.
           3/24/15 p. 24).         As Officer Girill proceeded to
           approach [appellant], Officer McClain stayed behind
           with the other male. (N.T. 3/24/15 pp. 8, 11). As
           Officer Girill came closer to [appellant], [appellant]
           stared at Officer Girill and shook his head as the
           officer apprehended him. (N.T. 3/24/15 pp. 8, 9).
           Officer Girill testified there were several other men
           present in the alleyway, “hanging out,” at the same
           time as he and [appellant] were stopped. (N.T.
           3/24/15 p. 9). Officer Girill also testified there was a
           parked vehicle in the middle of the alleyway with a
           couple inside of it. Id.

                 Officer Girill testified that as he patted down
           [appellant], he felt a gun in [appellant’s] right hip
           [pocket] which was the same hip that [appellant]
           had concealed behind the parked car. (N.T. 3/24/15
           pp. 7, 9). Officer Girill also stated that when he
           pat[ted] down [appellant], he immediately felt the
           handle of the gun in [appellant’s] right pocket, and
           that he believed it only to be a gun. (N.T. 3/24/15
           p. 12). Moreover, he stated that he had felt the
           handle of a revolver a few dozen times before in his
           experience as a police officer. Id. Officer Girill
           made an in-court identification of [appellant] as
           Keith Whaley. (N.T. 3/24/15 p. 8).

Trial court opinion, 10/30/15 at 1-4 (Footnotes 1-3 omitted).

     Appellant raises the following issue for our review:

           Where [appellant] was detained and searched solely
           on the basis of an unfounded radio call for two men
           that were trying to gain entry to the rear of a
           property and [appellant] was one of several males in
           the alley, was not such detention and search
           unsupported by reasonable suspicion or probable
           cause, in violation of the Fourth and Fourteenth
           Amendments of the United States Constitution and
           Article I, Section 8 of the Pennsylvania Constitution,
           and therefore should not the physical evidence
           subsequently seized by the police have been
           suppressed?


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Appellant’s brief at 3.

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            [We are] 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, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).

      Under     our   Fourth   Amendment       jurisprudence,    three    levels   of

interactions between citizens and police officers exist: a mere encounter, an

investigative   detention,     and   a   custodial   detention    or     an   arrest.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012), appeal

denied, 50 A.3d 124 (Pa. 2012) (citation omitted).




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      There    exists   no   dispute   that   the   instant   appeal   involves   an

investigatory detention. An investigatory detention subjects an individual to

a stop and short period of detention.         Id.   This seizure does not involve

actions that are so coercive as to comprise the equivalent of an arrest. Id.

To conduct an investigative detention, police must have reasonable suspicion

of criminal activity. Id.

      Reasonable suspicion exists “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.”       Commonwealth v. Kearney, 601 A.2d 346, 348

(Pa.Super. 1992) (citation omitted).

              [Moreover,] [i]f the police respond to an anonymous
              call that a particular person at a specified location is
              engaged in criminal activity, and upon arriving at the
              location see a person matching the description but
              nothing more, they have no certain knowledge
              except that the caller accurately described someone
              at a particular location . . . . The fact that a suspect
              resembles the anonymous caller’s description does
              not corroborate allegations of criminal conduct, for
              anyone can describe a person who is standing in a
              particular location at the time of the anonymous call.
              Something more is needed to corroborate the caller’s
              allegations of criminal conduct.

Commonwealth v. Wiley, 858 A.2d 1191, 1194-1195 (Pa.Super. 2004),

quoting Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997)

(other citations omitted).       Additionally, it is well settled that “[m]ere

presence near a high crime area or in the vicinity of a recently reported



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crime, is not enough to warrant a Terry[2] stop.”         Commonwealth v.

Kearney, 601 A.2d 346, 348 (Pa.Super. 1992) (citations omitted). Rather, a

police officer “must observe irregular behavior before he initiates a stop

and, concurrently to his observation, he must hold a belief that criminal

activity is afoot.” Id. (citations omitted and emphasis added).

        Here, appellant was seized for constitutional purposes at the moment

Officer Girill ordered him to stop. This is so because the relevant inquiry is

whether a reasonable person who is innocent of any crime would have

thought he was being restrained had he been standing in defendant’s shoes.

See Commonwealth v. Jones, 378 A.2d 835, 840 (Pa. 1977). As soon as

Officer Girill ordered appellant to stop, a reasonable person standing in

appellant’s shoes would have felt that he was not free to depart. For that

seizure to be lawful, then, Officer Girill must have developed a reasonable

suspicion prior to ordering appellant to stop.

        The record clearly establishes that Officer Girill responded to a radio

call based on an anonymous tip concerning two African American men at a

specified location who were allegedly engaged in a burglary. 3       (Notes of

testimony, 3/24/15 at 6, 13.)       Upon arriving at the location within one

minute of receiving the radio call, Officer Girill saw appellant, an African



2
    Terry v. Ohio, 392 U.S. 1 (1968).
3
  Officer Girill testified that the tip was later determined to be unfounded.
(Notes of testimony, 3/24/15 at 13.)


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American man, and his companion walking down an alleyway, as well as five

other black males “hanging out in the area.” (Id. at 7, 19.) Officer Girill did

not observe appellant engage in any irregular or suspicious activity prior to

directing him to stop, as demonstrated by the following colloquy:

            Q.    When you got to the location, did you go to the
                  front or to the back?

            A.    We went directly to the rear.

            Q.    What happened when you went to the rear?

            A.    As we pulled through, I was driving. I looked
                  to my left and I observed two males walking
                  southbound through the alleyway.

            Q.    What did you do when you saw those two
                  males?

            A.    Ordered them to stop.

            Q.    And what happened?

            A.    The one stopped. The other one proceeded to
                  walk southbound with his hands in his pocket.

            Q.    And what else happened?

            A.    We asked him to stop again. At that point he
                  turned and he concealed the right side of his
                  body behind a parked car.

                  ....

            Q.    Was there anybody else other than you and
                  the defendant?

            A.    There were several other men out there.
                  Again, there was a car parked right in the
                  middle of the alleyway. There was a couple



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                  inside it and the rest were just hanging out
                  around it.

            Q.    Officer, when you frisked the defendant, why
                  did you do so?

            A.    Because he walked away with his hands in his
                  pocket. We [sic] refused to stop. And then he
                  was -- it appeared he was trying to hide
                  something behind the vehicle.

Id. at 7, 11.

      The record clearly reflects that when Officer Girill first saw appellant,

he saw several African American males in the area, including appellant who

was merely walking with another man through an alleyway that happened to

be in the vicinity of a recently reported crime allegedly being committed by

two African American men. Nevertheless, Officer Girill ordered appellant to

stop. It was not until after Officer Girill ordered appellant to stop that the

officer observed appellant attempting to conceal the right side of his body

behind a parked car and hide something behind that vehicle. (Id. at 7, 11.)

      Because appellant’s suspicious and irregular behavior of attempting to

conceal something behind the vehicle occurred after Officer Girill initiated

the stop, our case law dictates that the stop was illegal and, therefore, the

suppression court’s legal conclusion constituted error. Accordingly, the fruit

of the illegal seizure must be suppressed.

      Judgment of sentence reversed.          Case remanded.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2016




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