Commonwealth v. Morrison

• Decision Date: 21 June 2017
• Docket Number: No. 2416 EDA 2015,2416 EDA 2015
• Citation: 166 A.3d 357
• Parties: COMMONWEALTH of Pennsylvania v. Tyshir MORRISON, Appellant
• Court: Pennsylvania Superior Court

166 A.3d 357

COMMONWEALTH of Pennsylvania

v.Tyshir MORRISON, Appellant

No. 2416 EDA 2015

Superior Court of Pennsylvania.

Argued November 16, 2016

Filed June 21, 2017

Victor E. Rauch, Public Defender, Philadelphia, for appellant.

Johnathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

OPINION BY FITZGERALD, J.:

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 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.

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.

* * *

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.

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 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 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, 605 Pa. 188, 988 A.2d 649, 654 (2010) ]. Moreover, 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. SeeIn re L.J., 622 Pa. 126, 79 A.3d 1073, [1080] ( [Pa.] 2013).

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal denied , 632 Pa. 670, 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.

...