J-A31036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

TYSHIR MORRISON

                               Appellant              No. 2416 EDA 2015


              Appeal from the Judgment of Sentence July 27, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0001150-2015

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 10, 2017

        Appellant, Tyshir Morrison, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions of persons not to possess firearms,1 firearms not to

be carried without a license,2 and carrying firearms in public in Philadelphia.3

Appellant alleges the trial court erred in denying his motion to suppress the

gun found in his pocket. We reverse the suppression order.

        The relevant facts and procedural history of this appeal are as follows.

On May 21, 2015, Appellant filed an omnibus pretrial motion to suppress the

discovery of the firearm. The trial court conducted a hearing on Appellant’s

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6106(a)(1).
3
    18 Pa.C.S. § 6108.
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motion on May 26, 2015. Officer Joseph Hogan testified to the following on

direct examination. On January 18, 2015, he and Officer Sean Parker were

on patrol in Philadelphia in their police uniforms and marked patrol car.

N.T., 5/26/15, at 6-7. At approximately 8:25 p.m., the officers received a

radio call from an unknown source about a robbery with a firearm of a store

at 1700 Susquehanna Avenue in Philadelphia. Id. at 7-8. The perpetrators

were described as two black males wearing black hoodies, blue jeans, and

masks. Id. Approximately five minutes later, the officers saw Appellant and

another male walking along the 1700 block of West Lehigh Avenue, which is

about five blocks away from where the robbery occurred.         Id. at 8-9.

Appellant was wearing a black hoodie and gray sweatpants.4        Id. at 9.

There were no other individuals or parked vehicles on the block. Id. at 9-

11.

        Officer Hogan was slowly driving the patrol car as he and Officer

Parker surveyed Appellant and the other male. Id. at 10-11. Officer Hogan

then stopped the patrol car about five feet away from the two males. Id. at

11. Officer Parker got out of the patrol car and told the two males to stop.

Id. The other male stopped walking while Appellant, who appeared nervous,

turned his back towards the patrol car and started slowly walking away from

the officers. Id. at 12.


4
    No description of Appellant’s companion was given.




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     Officer Hogan exited the patrol car and also told Appellant to stop. Id.

at 12-13. Appellant complied and Officer Hogan approached Appellant and

told him to remove his hands from his pockets. Id. at 13. Appellant initially

complied, but put his hands back in his pockets while speaking to Officer

Hogan.   Id.   Officer Hogan noticed that Appellant’s pocket was weighed

down and saw the handle of a black handgun protruding from his pocket.

Id. Officer Hogan seized the firearm and arrested Appellant. Id. at 15.

     Officer Hogan further testified on cross-examination:

         [Defense Counsel]. Okay. Now Officer, you said the flash
         you received was for two black men in black hoodies,
         mask, and blue jeans, correct?

         [Officer Hogan]. Correct.

         Q. Okay. So in that flash, you didn’t have any mention of
         the age of the men?

         A. I don’t recall.

         Q. Nothing for height?

         A. I don’t recall.

         Q. No weight?

         A. I don’t recall.

         Q. And Officer, the fact that they matched this description
         is the only reason you stopped them, correct?

         A. Correct.

         Q. When you first saw them on the street, they were just
         walking?

         A. They were.


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                                *    *       *

       Q. . . . And you gave the information to prepare the
       PARS, correct?

       A. I did, but I did not prepare it.

       Q.    Officer, you would agree with me there is no
       information about him turning and then walking away?

       A. I didn’t prepare this, but I did not see any information
       about his turning his back.

       Q. Thank you.

          Now, Officer, when you ordered [Appellant] to stop,
       you had not seen the butt of a gun at that point, correct?

       A. I did not. Until I actually approached [Appellant].

       Q. And as you were approaching him, that is when you
       noticed the weight of the pocket, correct?

       A. I did, yes.

       Q. And you didn’t notice the butt of the gun until you had
       actually walked around and were facing [Appellant],
       correct?

       A. When he turned around, I approached [Appellant]. I
       told [Appellant] to take his hands out of his pockets, and I
       could see the butt―well his pocket weighed down. When I
       looked at the pocket, it was actually the butt of the gun
       was sticking out of it.

       Q. Officer, you are face-to-face with [Appellant] at this
       point, correct?

       A. Yes. Approximately 2 feet away.

       Q. Okay. Officer, you never saw him run, correct?

       A. He did not run.


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Id. at 17, 19-20.

      At the conclusion of the hearing, the trial court denied Appellant’s

suppression motion and immediately proceeded to a bench trial. Thereafter,

the court found Appellant guilty of the aforementioned firearms offenses.

The court sentenced Appellant on July 27, 2015, to four to eight years’

imprisonment for persons not to possess firearms, with no further penalty on

the remaining convictions.    Appellant timely filed a notice of appeal on

August 6, 2015. The court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied.

      Appellant raises the following issue for our review:

         Did not the trial court err in denying [A]ppellant’s motion
         to suppress physical evidence, insofar as [A]ppellant was
         stopped and frisked without reasonable suspicion?

Appellant’s Brief at 3.

      Appellant argues his motion to suppress the firearm should have been

granted because he was stopped without reasonable suspicion in violation of

the Pennsylvania and United States Constitutions. Appellant alleges he was

unlawfully seized by the police officers without reasonable suspicion because

there was no criminal activity afoot at the time of the stop.      Appellant

maintains no reasonable person in Appellant’s situation would have believed

he was free to leave, as he was approached by two uniformed police officers

in a marked patrol car and told twice to stop. Appellant claims there is no


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evidence in the record that he matched the general description of the

suspects, which was provided to the police by an unknown source. Appellant

concludes this Court should vacate his judgment of sentence and remand for

a new trial excluding the illegally seized evidence.

      In its brief, the Commonwealth argues the interaction between the

police and Appellant and his companion was a mere encounter.              The

Commonwealth alleges the trial court properly determined it was the

officers’ duty to stop Appellant and the other male because of their proximity

in time and location to the robbery, they matched the reported race of the

suspects, and Appellant’s clothes partially matched the description of the

suspects. The Commonwealth claims Appellant and the other male were not

physically restrained in anyway, that there was no indication of coercion

because the officers did not activate their lights and sirens, and Appellant

and the other male were told to stop in a normal tone. The Commonwealth

asserts that, viewing the totality of the circumstances, the interaction

between the officers and Appellant did not rise to a restraint on Appellant’s

liberty that would cause a reasonable person to believe he was not free to

leave.   Furthermore, the Commonwealth argues that the mere encounter

rose to an investigative detention that was supported by reasonable

suspicion based on Officer Hogan’s observations of Appellant’s nervous

behavior, his walking away from the officers, and the recent report of a

robbery by two men in the same area. Finally, the Commonwealth contends



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that the suspects’ description provided in the radio call suggested that the

tip was provided by an eyewitness, not an anonymous source.               The

Commonwealth, thus, maintains that Officer Hogan made a plain view

observation of Appellant’s weighed down pocket and the protruding gun

handle    during   a   lawful   investigative   detention.   Therefore,   the

Commonwealth asserts that the trial court properly denied Appellant’s

motion to suppress.

     For the reasons that follow, we reverse the trial court’s denial of

Appellant’s suppression motion, vacate his judgment of sentence, and

remand.

            Our standard of review in addressing a challenge to the
          denial of a suppression motion is

            limited to determining whether the suppression
            court’s factual findings are supported by the record
            and whether the legal conclusions drawn from those
            facts are correct.      Because the Commonwealth
            prevailed before the suppression court, we may
            consider only the evidence of the Commonwealth
            and so much of the evidence for the defense as
            remains uncontradicted when read in the context of
            the record as a whole.        Where the suppression
            court’s factual findings are supported by the record,
            we are bound by these findings and may reverse
            only if the legal conclusions are erroneous. 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. Jones, 988 A.2d 649, 654 (Pa.
          2010)] [].    Moreover, appellate courts are limited to
          reviewing only the evidence presented at the suppression


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        hearing when examining a ruling on a pre-trial motion to
        suppress. See In re L.J., [] 79 A.3d 1073, [1080] ([Pa.]
        2013).

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015).

           The Fourth Amendment of the Federal Constitution
        provides, “the 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. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en banc)

(some citations omitted).

     “If a reasonable person does not feel free to terminate an encounter

with the police and leave the scene, then a seizure of that person has

occurred.”   Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super.

2002) (citation omitted). However,




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        [t]he 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.     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. . . . [A]s the Supreme
        Court has long recognized, Terry v. Ohio, 392 U.S. 1 []
        (1968) is an exception to the textual standard of probable
        cause. A suppression court is required to take[] into
        account the totality of the circumstances—the whole
        picture.    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. In
        addition, an officer may conduct a limited search, i.e., a
        pat-down of the person stopped, if the officer possesses
        reasonable suspicion that the person stopped may be
        armed and dangerous.

Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en

banc) (some quotation marks and citations omitted), appeal denied, 117

A.3d 295 (Pa. 2015).

        In determining whether reasonable suspicion exists for an
        investigative detention, or as it is also known in the
        common legal vernacular, a “Terry stop,” the inquiry is
        the same under both the Fourth Amendment of the United
        States Constitution and Article 1, § 8 of the Pennsylvania
        Constitution. “The fundamental inquiry is an objective
        one, namely, whether ‘the facts available to the officer at
        the moment of the intrusion warrant a man of reasonable
        caution in the belief that the action taken was
        appropriate.’” In order to determine whether the police
        had a reasonable suspicion to subject an individual to an
        investigative detention, the totality of the factual
        circumstances which existed at the time of the
        investigative detention must be considered. “Among the
        factors to be considered in establishing a basis for
        reasonable suspicion are tips, the reliability of the



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         informants, time,     location,      and   suspicious    activity,
         including flight.”

Ayala, 791 A.2d at 1208 (citations omitted).

      “[E]ven where the circumstances surrounding an individual’s conduct

suggest ongoing illegality, the individual may not be detained unless his or

her   personal   conduct    substantiates      involvement   in    that       activity.”

Commonwealth v. Beasley, 761 A.2d 621, 626 (Pa. Super. 2000)

(citations omitted).   “This standard . . . requires a particularized and

objective basis for suspecting the particular person stopped of criminal

activity.” Ayala, 791 A.2d at 1209 (citation and quotation marks omitted).

         [I]n order for a stop to be reasonable under Terry [], the
         police officer’s reasonable and articulable belief that
         criminal activity was afoot must be linked with his
         observation of suspicious or irregular behavior on the part
         of the particular defendant stopped. Mere presence near a
         high crime area . . . or in the vicinity of a recently reported
         crime . . . does not justify a stop under Terry.
         Conversely, an officer’s observation of irregular behavior
         without a concurrent belief that crime is afoot also renders
         a stop unreasonable.

Id. (citations omitted).    A police officer’s assessment that an individual

appears nervous “does not provide reasonable suspicion for an investigative

detention.”   Commonwealth v. DeHart, 745 A.2d 633, 637 (Pa. Super.

2000) (citing Commonwealth v. Sierra, 723 A.2d 644 (Pa. 1999)).

Moreover, “[o]ur Supreme Court has held that where a citizen approached

by a police officer is ordered to stop . . . obviously a ‘stop’ occurs.” Ranson,

103 A.3d at 77 (holding that the appellant was subjected to an investigative



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detention at the time the police officers commanded him to stop) (citation

and quotation marks omitted).      “[P]ursuit by police constitutes a seizure

under the law of this Commonwealth[; therefore,] a person may be seized

even though he is moving away from the police.”        Id. (citation omitted).

Thus, the issue is whether police officers possess reasonable suspicion that

the suspect was engaged in criminal conduct when they issued a command

to stop. Id.

      Furthermore, when analyzing a tip from an unknown source “we must

determine whether under ‘the totality of the circumstances’ the informant’s

tip established the necessary reasonable suspicion that criminal activity was

afoot.”   Ranson, 103 A.3d at 78 (citation omitted).     “[Both] quantity and

quality of information are considered when assessing the totality of the

circumstances.    If information has a low degree of reliability, then more

information is required to establish reasonable suspicion.”       Id. (citation

omitted).

          [A] radio dispatch based on information provided from an
          informant whose identity is unknown, and which accuses
          an individual of involvement in criminal activity, will not,
          standing alone, provide the requisite basis for an
          investigatory detention of a person who happens to match
          the physical description of the accused individual provided
          by the tipster. . . .

            Because of its unreliability, an anonymous radio call
            alone is insufficient to establish a reasonable
            suspicion of criminal activity.       The Court in
            [Commonwealth v. Jackson, 698 A.2d 571 (Pa.
            1997)] further explained that the fact that the police
            proceeded to the designated location and saw a


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           person matching the description in the call did not
           corroborate any alleged criminal activity.      Since
           anyone can describe a person who is standing in a
           particular location, something more is needed to
           corroborate the caller’s allegations of criminal
           conduct. In the typical anonymous caller situation,
           the police will need an independent basis to establish
           reasonable suspicion.

           . . . When the police receive unverified information
           that a person is engaged in illegal activity, the police
           may observe the suspect and conduct an
           investigation.   If police surveillance produces a
           reasonable suspicion of criminal conduct, the suspect
           may be stopped and questioned.

Ayala, 791 A.2d at 1209-10 (quotation marks and some citations omitted).

     Instantly, we must first examine whether the encounter between

Appellant and Officers Hogan and Parker rose to an investigative detention.

See Carter, 105 A.3d at 768. Appellant and the other male were walking

down the street five blocks away from where the robbery occurred when

Officers Hogan and Parker stopped their patrol vehicle behind the two men

because they matched the suspects’ description. N.T. at 10-11, 17. Officer

Parker then alighted from the patrol vehicle in full uniform and told the two

males to stop. Id. at 11. Appellant continued walking while his companion

stopped to talk to Officer Parker.     Id. at 12.   When Officer Hogan saw

Appellant walking away, he then got out of the vehicle in full uniform and

again told Appellant to stop. Id. at 12-13. Under these circumstances, it is

apparent that when the officers twice ordered Appellant to stop he was

immediately subjected to an investigative detention.       See Ranson, 103



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A.3d at 77.   Thus, a reasonable person in Appellant’s situation would not

have felt free to terminate the encounter and leave the scene. See Ayala,

791 A.2d at 1208.     Accordingly, the Commonwealth’s assertion that the

interaction between the officers and Appellant began as a mere encounter

similar to that in Commonwealth v. Lyles, 97 A.3d 298 (Pa. 2014) is

unavailing.   Cf. Lyles, 97 A.3d at 306 (holding interaction in which a

uniformed police officer approached the appellant and requested his

identification did not amount to more than a mere encounter).

      Having concluded that Appellant was subjected to an investigative

detention when the officers told him to stop, we must next examine whether

Officers Hogan and Parker possessed reasonable suspicion that Appellant

and the other male were engaged in criminal conduct when the officers

issued the command to stop.       See Ranson, 103 A.3d at 77.          At the

suppression hearing, Officer Hogan testified that Appellant and the other

male were merely walking down the street when the officers pulled over

their patrol vehicle. N.T. at 17. He further testified that Appellant did not

run but instead began slowly walking away while the other man spoke with

Officer Parker. Id. at 12, 20. Officer Hogan did not notice that Appellant’s

pocket appeared to be weighed down or that there was a handle of a gun

sticking of his pocket until after he told Appellant to stop, approached him,

and asked him to remove his hands from his pockets.       Id. at 19.   Officer

Hogan further testified that the only reason why they stopped Appellant and



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the other male was because they matched the description of the robbery

suspects. Id. at 17. Nevertheless, the suspects’ description was provided

by an unknown source and the radio call only described the suspects as two

black males wearing black hoodies, blue jeans and masks.5 Id. at 7-8. No

further physical description of the suspects was provided.6        Appellant, a

black male, was wearing a black hoodie with grey sweatpants when the

officers stopped him.      Id. at 9.      Thus, under the totality of the

circumstances, the quality and quantity of the information provided by the

unknown source was insufficiently reliable to establish reasonable suspicion.

See Commonwealth v. Coleman, 130 A.3d 38, 46-47 (Pa. Super. 2015)

(holding an anonymous tip that the appellant was selling drugs and had

been cited for driving with a suspended license was a bare bones allegation

that fell short of the quality and quantity of information required to

corroborate a search of the appellant’s residence); see also Ranson, 103

A.3d at 78; Ayala, 791 A.2d at 1209-10; DeHart, 745 A.2d at 637

(determining a radio police tip from an unknown source that reported a

5
  Although the Commonwealth argues that the tip was provided by an
eyewitness and not an anonymous source, this is pure speculation. See
Commonwealth’s Brief at 17. The Commonwealth failed to present any
evidence at the suppression hearing to prove this allegation; thus, it failed to
meet its burden. See Pa.R.Crim.P. 581(H); see also In re L.J., 79 A.3d at
1080 (stating appellate courts are limited to reviewing only the evidence
presented at the suppression hearing when examining a ruling on a pre-trial
motion to suppress).
6
  The Commonwealth presented no testimony regarding the companion’s
clothing.



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suspicious slow moving vehicle was too vague and was unsupported by

indicia of reliability to provide the police officers with reasonable suspicion of

criminal activity for an investigative detention).     Moreover, the fact that

Appellant appeared nervous after the officers stopped and approached him

does not provide reasonable suspicion for an investigative detention.        See

DeHart, 745 A.2d at 637.

      Viewing the totality of the circumstances, Appellant’s personal conduct

when he was stopped did not support an objective basis that he was

involved in any illegal activity.     See Ayala, 791 A.2d at 1208, 1209;

Beasley, 761 A.2d at 626.        Therefore, the trial court erred in denying

Appellant’s motion to suppress the firearm, as the officers lacked reasonable

suspicion to stop and search Appellant pursuant to an investigative

detention.   See Carter, 105 A.3d at 768-69; Ayala, 791 A.2d at 1208.

Accordingly, we reverse the trial court’s denial of Appellant’s suppression

motion, vacate the judgment of sentence, and remand for proceedings

consistent with this memorandum.

      Judgement of sentence vacated.           Case remanded.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2017




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