J. S30022/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 1⁄2) 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 

7

th 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