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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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