J-A19018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DARIEN MCPHERSON

                            Appellee                  No. 1446 EDA 2015


                  Appeal from the Order Entered April 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013625-2014
                            CP-51-CR-0013652-2014



BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 Filed October 5, 2016

        The Commonwealth brings this appeal from the order entered April 10,

2015, in the Court of Common Pleas of Philadelphia County, granting the

suppression motion filed by Darien McPherson.1 The Commonwealth raises

the following issue:        “Did an experienced police officer have reasonable

suspicion to detain [McPherson] where the officer was responding to reports

of a gunpoint robbery in progress, minutes earlier, in a high crime area, a

bystander pointed to [McPherson’s] location, and [McPherson] matched the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The Commonwealth has certified in the notice of appeal that the trial
court’s order terminates or substantially handicaps the prosecution. Thus,
this appeal is properly before this court. See Pa.R.A.P. Rule 311(d).
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description of the armed suspect?”             Commonwealth’s Brief, at 5. 2   Based

upon the following, we affirm.

       The trial court has summarized the facts of this case, as follows:

       On September 29, 2014, Sergeant David Armstrong was on duty
       when he received a radio call at 8:18 pm concerning a person
       with a gun in the area of Frankford Avenue and Orleans Street in
       Philadelphia. The Sergeant described that section of the city as a
       high-crime, high-narcotics area where he had made at least a
       half dozen gun arrests. The radio call contained flash
       descriptions of two black males. One was described as tall,
       wearing a white shirt and blue jeans. The second male was said
       to be shorter, wearing a red or orange shirt, and blue jeans. Less
       than a minute later, Sergeant Armstrong received a second radio
       call about a robbery in progress. The same flash description for
       two black males was given. Sergeant Armstrong responded to
       the calls, drove to the area of Frankford Avenue and Orleans
       Street, and began to look for the two males. While searching on
       Emerald Street, Sergeant Armstrong saw an unknown man point
       a finger down Stella Street towards Frankford Avenue. The
       sergeant interpreted this as indicating that someone matching
       the flash description was heading in that direction.

       Sergeant Armstrong’s search continued to the 2000 block of
       Bellmore Street, where he observed Mr. McPherson, whom
       Sergeant Armstrong estimated to be about six feet, six inches
       tall. Mr. McPherson was wearing a white t-shirt and blue jeans.
       Mr. McPherson was walking eastbound on Bellmore Street
       accompanied by a black female. Around 8:25 pm, Sergeant
       Armstrong drove up to Mr. McPherson, exited the patrol car and
       immediately grabbed Mr. McPherson by the rear belt area of his
       pants. After grabbing Mr. McPherson, Sergeant Armstrong
       observed the butt of a handgun protruding from the rear pocket
       of Mr. McPherson’s pants. An Officer Perez pulled up to the area
       during the stop. Upon seeing Officer Perez, Mr. McPherson
____________________________________________


2
  Although not ordered by the trial court, the Commonwealth, on May 8,
2015, filed a Pa.R.A.P. 1925(b) statement of matters complained of on
appeal.



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      attempted to flee. After a short struggle, Sergeant Armstrong
      and Officer Perez placed Mr. McPherson in custody and seized
      from him the handgun Sergeant Armstrong had seen only after
      grabbing Mr. McPherson, one packet of heroin, and one packet of
      cocaine. Further investigation cleared Mr. McPherson as a
      suspect in the alleged robbery and two other males were
      apprehended as suspects.

Trial Court Opinion, 11/9/2015, at 1–2.

      Our standard of review is well-settled:

            When reviewing the propriety of a suppression order, an
            appellate court is required to determine whether the
            record supports the suppression court’s factual findings
            and whether the inferences and legal conclusions drawn
            by the suppression court from those findings are
            appropriate. Where the defendant prevailed in the
            suppression court, we may 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. Where the record
            supports the factual findings of the suppression court, we
            are bound by those facts and may reverse only if the
            legal conclusions drawn therefrom are in error. However,
            where the appeal of the determination of the suppression
            court turns on allegations of legal error, "the suppression
            court’s conclusions of law are not binding on an appellate
            court, whose duty it is to determine if the suppression
            court properly applied the law to the facts."

Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (citation

and internal citations omitted).

      There are three levels of interactions between citizens and police

officers:    a mere encounter, an investigative detention, and a custodial

detention or an arrest. Commonwealth v. Coleman, 19 A.3d 1111, 1115




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(Pa. Super. 2011). Here, the parties do not dispute that police conducted an

investigatory detention.3       An investigatory detention or “Terry”4 stop “is

temporary … and does not possess the coercive conditions consistent with a

formal arrest. Since this interaction has elements of official compulsion it

requires reasonable suspicion of unlawful activity.”      Id. at 1115 (citation

omitted).

        The police are permitted to stop and briefly detain citizens only
        when they have reasonable suspicion, based on specific and
        articulable facts, that criminal activity may be afoot.
        Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153,
        1156 (2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.
        1868, 1884, 20 L. Ed. 2d 889 (1968)); Commonwealth v.
        Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996);
        Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276,
        280 (1969). 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.
        Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677
        (1999); Commonwealth v. Jackson, 548 Pa. 484, 488, 698
        A.2d 571, 573 (1997). “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.’” Zhahir,
        supra, at 552, 751 A.2d at 1156 (citing Terry, supra, 392 U.S.
        at 21-22, 88 S. Ct. at 1880). 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. Id. (citing United States v. Cortez, 449 U.S. 411,
        417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). “Among the
____________________________________________


3
    See N.T., 4/10/2015, at 28, 40.
4
    Terry v. Ohio, 392 U.S. 1 (1968).



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     factors to be considered in establishing a basis for reasonable
     suspicion are tips, the reliability of the informants, time,
     location,   and    suspicious   activity,   including    flight.”
     Commonwealth v. Gray, 2001 PA Super 262, 784 A.2d 137,
     142 (Pa.Super. 2001).

Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002).

     Here, the trial court determined police had no reasonable suspicion to

stop McPherson:

     In this case, the stop of Mr. McPherson was based on two
     anonymous phone calls that provided general descriptions of the
     height, race, and clothing of two black men who allegedly
     possessed a gun and were involved in a robbery. In addition,
     Sergeant Armstrong observed an unknown man point his finger in
     the direction of Frankford Avenue. Both calls provided the same
     amount of information except that the second caller indicated that
     individuals of the same description were involved in a robbery in
     progress.

     The point of finger by the unknown male is of de minimis value in
     the totality of the circumstances analysis. The unknown male
     pointed in a general direction and not at Mr. McPherson. The
     record does not reflect why the unknown male pointed, or if he
     had witnessed any criminal or suspicious activity. Even if the
     unknown male saw a tall black male in jeans and a white t-shirt
     on the streets of Philadelphia, it does not corroborate the alleged
     criminal activity in the anonymous calls. Therefore, independent
     corroboration was required. See Com. v. Hawkins, 692 A.2d
     1068, 1070-71 (Pa. 1997). (“[S]ince there is no gun exception to
     the Terry requirement for reasonable suspicion of criminal
     activity, in the typical anonymous caller situation, the police will
     need an independent basis to establish the requisite reasonable
     suspicion.”)

     Mr. McPherson was observed walking down the block and not
     engaged in any activity that could be described as suspicious.
     Since the attempted flight and the observation of the gun did not
     occur until after Sergeant Armstrong grabbed Mr. McPherson, it
     does not factor into the reasonable suspicion analysis because the
     only relevant facts are the ones available to the officer
     immediately before the stop. See [Commonwealth v.] Gray,

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      784 A.2d [137, 142 (Pa. Super. 2001)]. While the events in
      question occurred in a high-crime area, this factor alone is an
      insufficient basis for a Terry stop unless coupled with
      circumstances such as suspicious activity or flight by Mr.
      McPherson. See [In the Interest of] M. D., 781 A.2d [192, 197
      (Pa. Super. 2001)] (explaining when a combination of innocent
      facts can give rise to reasonable suspicion). In short, Sergeant
      Armstrong’s investigation produced no reason to stop Mr.
      McPherson independent of the anonymous phone calls and an
      unexplained point of finger.

Trial Court Opinion, 11/6/2015, at 4–5.

      The Commonwealth asserts that the trial court “focused on the fact

that the stop was purportedly based upon ‘two anonymous phone calls,’

[b]ut the sergeant testified that an officer went to the location of the robbery

and sent out a ‘flash’ regarding the crime.”      Commonwealth’s Brief at 15.

The Commonwealth argues “[Sergeant] Armstrong stopped [McPherson]

after that flash was sent out. While the individual the officer encountered

was not named at the suppression hearing, the fact that information was

supplied in person substantially enhanced its reliability.” Id. at 15, citing In

the Interest of D.M. 727 A.2d 556, 558 (Pa. 1999); Commonwealth v.

Barber, 889 A.2d 587, 593 (Pa. Super. 2005).

        The Commonwealth further claims, “even assuming arguendo that all

of the calls were ‘anonymous,’ the stop was still entirely proper” because

“[a]nonymous tips may be relied upon to support an investigatory stop

where    police   have   corroborating    information   which,   in   combination,

establishes a reasonable suspicion of criminal activity.”        Id. at 16.    We

address these arguments sequentially.

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     The Commonwealth contends, “In the first place, Sergeant Armstrong

testified that one of the reports regarding the crime was issued by a police

officer at the scene, which is a more reliable source of information than an

anonymous tip.” Commonwealth’s Brief at 22, citing N.T., 4/10/2015, at 18.

The Commonwealth points to Sergeant Armstrong’s cross-examination,

testimony where he stated:

     A There were multiple radio calls, Your Honor. There was also
     an officer that arrived on location with the complainant that put
     out an additional flash. The complainant was brought to the
     location, but he was negatively ID’d for the robbery and the
     person with a gun call.

     Q After my client was already in custody, the complainant
     arrived on the scene?

     A An officer was on location with the complainant at Frankford
     and Orleans Street. So radio calls came out for the job. An
     officer responded to that location. An additional flash was put
     out by an officer on location. This male was stopped. The
     complainant was brought to the location where this male was
     stopped, where this male was negatively ID’d for that incident.
     He was still under arrest for the gun. A short time later, two
     other males were apprehended in regards to the actual robberies
     at Frankford and Orleans.

N.T., 4/10/2015, at 18.

     Relying on Sergeant Armstrong’s testimony that “[a]n additional flash

was put out by the officer on location [and t]his male was stopped,” the

Commonwealth     claims     the   “flash”    information     preceded    Sergeant

Armstrong’s   stop   of   McPherson.        We   are   not   persuaded    by   the

Commonwealth’s assertion.




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      We note that although there were radio calls that were played at the

suppression hearing, they were not moved into evidence and are not part of

the certified record. See N.T., 4/10/2015, at 14, 19, 28. Here, there is no

evidence in the record that Sergeant Armstrong knew the source of the radio

calls. Furthermore, Sergeant Armstrong’s testimony did not indicate when

the “additional flash” was sent, or if he relied on it in stopping McPherson.

As such, we find no basis upon which to reject the trial court’s determination

that the only information possessed by Sergeant Armstrong at the time he

stopped McPherson were two anonymous phone calls.

      We next consider the Commonwealth’s argument that even if the tips

were anonymous, police had reasonable suspicion in this case.       Here, the

Commonwealth relies on, inter alia, Navarette v. California, 134 S.Ct.

1683 (U.S. 2014) and Commonwealth v. M.Jackson, 678 A.2d 798 (Pa.

Super. 1996).

      In Navarette, a 911 caller reported that a vehicle, identified as a

silver Ford pickup truck with a specific license plate number, had run her off

the road. Police dispatch then sent out a broadcast with that information. A

police officer responded to the broadcast and, approximately thirteen

minutes later, located the vehicle identified during the call.   Five minutes

later, he executed a traffic stop, although he had not observed any

suspicious driving. As the officer approached the truck with a second officer




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who had arrived on the scene, they smelled marijuana. In the truck bed,

they discovered thirty pounds of marijuana.

      The United States Supreme Court upheld the stop, ruling that the 911

call was sufficiently reliable and provided reasonable suspicion for the traffic

stop. The Court held that a 911 call “bore adequate indicia of reliability for

the officer to credit the caller’s account,” and constituted a reliable tip.

Navarette, 134 S.Ct. at 1688. The Navarette Court reasoned “[a] 911 call

has some features that allow for identifying and tracing callers, and thus

provides some safeguards against making false reports with immunity.” Id.

at 1689.

      In M.Jackson, an officer received a report regarding a robbery in

progress with the suspect described as “wearing a black baseball hat and a

black jacket.” Id., 678 A.2d at 799. The officer saw Jackson, who matched

that description about two and one-half blocks away from the crime scene,

and only five minutes after receiving the call on the radio. Id. at 800. After

asking Jackson to stop, the officer asked him from where he was coming.

Id. Jackson replied his girlfriend’s place. Id. The officer frisked Jackson and

recovered a gun. Id. This Court held that while the officer did not observe

any unusual or suspicious conduct, “other integral factors … create[d] the

requisite ‘specific and articulable facts’ that justif[ied] [the officer’s] stop[.]”

Id. at 801. These factors included that Jackson exactly fit the meager

description of the suspect given over police radio, Jackson was temporally


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and spatially proximate to the crime scene, the crime reported was a

“serious felony,” and the confrontation between Jackson and the officer

occurred late in the evening in an area that was admittedly dangerous. Id.

        Relying on Navarette, the Commonwealth asserts the nature of the

crime — a robbery in progress — “suggested that the report came from an

eyewitness to the crime, establishing the basis of the source’s knowledge.

This is an important factor further supporting the reliability of the tip.”

Commonwealth Brief at 17–18. Relying on M.Jackson, the Commonwealth

argues McPherson matched the description of the suspect, pointing out that

McPherson was six feet six inches tall, and wearing a white shirt and blue

jeans; Sergeant Armstrong knew the location where he encountered

McPherson was a “violent and crime-ridden area;”5 and McPherson was

stopped only seven minutes after the call regarding the robbery and in the

vicinity of the crime.6     See id. at 17–18. In addition, the Commonwealth

asserts the circumstances of this case present even a stronger case for an

investigatory stop because Sergeant Armstrong was directed to McPherson’s

location by a bystander who “flagged [him] down.” Commonwealth’s Brief

at 19, citing N.T., 4/10/2015, at 21–22, 24, 27.



____________________________________________


5
    N.T., 4/10/2015, at 17.
6
    Id. at 23–24.



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      McPherson counters that the radio calls were anonymous tips, that the

meaning of the bystander’s finger pointing is speculative, and that Sergeant

Armstrong possessed no corroborative information.          McPherson, at oral

argument, maintained that the report of a “robbery in progress” does not

indicate contemporaneous information like the 911 call in Navarette.

Additionally, McPherson argues M.Jackson made no distinction between

stops based upon anonymous tips and stops based on tips from known

informants.    In support of his position, McPherson cites, inter alia,

Commonwealth v. C.Jackson, 698 A.2d 571 (Pa. 1997), Commonwealth

v. Hawkins, 692 A.2d 1068 (Pa. 1997) (OAJC), and Florida v. J.L., 529

U.S. 266 (2000). See McPherson’s Brief at 18–19.

      In C.Jackson, at 10:23 p.m., police received a police radio report of a

man in a green jacket carrying a gun, with no other details except location.

Within two minutes of receiving the call, police arrived at the location where

there were a number of individuals. The defendant was the only individual in

a green jacket.   There was no evidence he acted suspiciously. However, a

police officer stopped the defendant and searched him. As he was being

searched, a small key box fell next to him, which contained fourteen packets

of cocaine. C.Jackson, supra, 698 A.2d at 572. The Supreme Court held

that such an anonymous tip, without independent police corroboration

producing reasonable suspicion of criminal activity, is insufficient to justify a

stop and frisk. The Court reasoned as follows:


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      In [Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997)],
      the Philadelphia police responded to an anonymous telephone
      report that there was a man with a gun at the corner of
      Sydenham and York Streets. The suspect was described as a
      black male wearing a blue cap, black jeans and a gold or
      brownish coat. We held that such allegations, without more, did
      not constitute reasonable grounds for the police to suspect that
      the individual was armed and dangerous:

            If 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.

      Hawkins, 692 A.2d at 1070. Thus the details provided by the
      caller in this case were insufficient, even when corroborated, to
      satisfy the reasonable suspicion standard.

Id., 698 A.2d at 574-575.

      In J.L., police received an anonymous tip that “a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a

gun.” J.L., supra, 529 U.S. at 268. Officers proceeded to the bus stop, and,

when they arrived there, they saw three black males, one of whom was

wearing a plaid shirt. “Apart from the tip, the officers had no reason to

suspect any of the three of illegal conduct. The officers did not see a firearm,

and J.L. made no threatening or otherwise unusual movements.” Id.

Nevertheless, one officer directed J.L. to place his hands up, frisked him, and

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found a gun. Id.        The J.L. Court rejected modifying Terry to create a

“firearm exception,” and ruled that the stop and search violated the Fourth

Amendment. Id. at 272–273.

        Having carefully reviewed this record, we agree with the trial court

that Sergeant Armstrong possessed only two anonymous tips, without any

corroborating information. While the Commonwealth tries to align the report

of robbery in progress with the 911 call in Navarette, we are not persuaded

by this argument since there is no identifying information for the source that

would lend the report a higher degree of reliability. Moreover, we find the

decisions that address anonymous tips — C.Jackson, Hawkins and J.L. —

to be controlling here. Additionally, the Commonwealth relies on Sergeant
                                                         7
Armstrong’s testimony that he was “flagged down”             by a bystander;

however, this testimony only established that the officer saw the bystander

was pointing towards Frankford Avenue, without any indication that he was

specifically directing the officer to McPherson.8

        Here, Sergeant Armstrong’s justification for grabbing McPherson was

based solely on his observations that McPherson satisfied the generic

____________________________________________


7
    N.T., 4/10/2015, at 24.
8
  When Sergeant Armstrong was questioned on redirect examination as to
“how [was it] this man flagged you down,” he explained that as he “was
coming down the block [in his police vehicle, the individual was] pointing in
the direction towards the area of Frankford and Bellmore.” N.T., 4/10/2015,
at 27 (emphasis added).



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description and location information reported in the police radio calls.

Sergeant   Armstrong      observed   nothing   suspicious   about   McPherson’s

behavior before the stop — McPherson was simply walking down the street

with a female. Therefore, we agree with the suppression court that the facts

of this case warrant suppression. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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