J-S20022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA 

v.

ROBERT KEYS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2446 EDA 2022

Appeal from the Judgment of Sentence Entered September 23, 2022,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0000118-2021.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 26, 2023

Robert Keys appeals from the judgment of sentence imposed after his 

non-jury conviction for violations of the Uniform Firearms Act.

1

 He challenges 

the denial of his motion to suppress evidence. We affirm.

On September 23, 2020, Keys was arrested and charged with the above 

crimes after police found a gun in his waistband. He moved to suppress the 

gun; the suppression court heard Keys’ motion on May 4, 2022. The 

Commonwealth presented the testimony of Officers Christopher Rycek and 

Marc Kusowski. The court summarized its factual findings:

On September 23, 2020, at approximately 11:56 a.m., 

uniformed Philadelphia Police Officers Rycek, Lane, and Kusowski 

were on patrol in the City’s 25th Police District. Traveling 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
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eastbound on Clearfield Street in a marked police cruiser, 

approaching the intersection of C Street, Officer Rycek noticed 

[Keys] walking westbound towards them on Clearfield. Officer 

Rycek observed [Keys] glance at their cruiser and subsequently 

adjust an object tucked in his front waistband. Officer Rycek then 

alerted his partner, Officer Kusowski, that [Keys] had just 

adjusted what he believed to be a firearm in his front waistband.

As the patrol car drew level with [Keys], Officer Rycek, who 

was driving, braked and rolled down the front passenger window. 

He called out to [Keys], asking whether he was carrying a gun. 

[Keys] said no and continued walking westward, quickening his 

pace slightly. Officer Kusowski then exited the cruiser and 

approached [Keys] on foot, asking him again whether he was 

carrying a gun. As Officer Kusowski spoke, [Keys] turned his body 

approximately 45 degrees to the left and stood with his arms 

roughly akimbo [blocking his waist]. Moments later, [Keys] 

stepped backwards, at which point Officer Kusowski physically 

restrained him from further retreating.

Convinced that [Keys] was concealing a gun in his 

waistband—and afraid that he may try to draw it—Officer 

Kusowski grabbed at [Keys’] front waistband and recovered a 

Smith and Wesson nine-millimeter handgun. Officer Kusowski 

subsequently detained [Keys] on suspicion of firearms violations. 

While detained, [Keys] admitted that he did not have a license to 

conceal carry. Upon running the firearm’s serial numbers, the 

officers confirmed that [Keys] did not possess a concealed carry 

permit and that the gun was stolen. The officers arrested [Keys] 

for firearms violations.

Suppression Court Opinion, 12/14/22, at 1–2 (record citations omitted).

The court denied suppression. The case immediately proceeded to a 

non-jury trial based on the non-hearsay evidence from the suppression 

hearing. Keys was convicted on all counts. On September 23, 2022, the court 

sentenced Keys to 111⁄2 to 23 months of imprisonment followed by 3 years of 

probation. Keys timely appealed. Keys and the suppression court complied 

with Pennsylvania Rule of Appellate Procedure 1925.
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Keys presents two questions for our review:

1. Did the trial court err by denying the Motion to Suppress where 

the police lacked reasonable suspicion to detain or frisk Keys?

2. Did the trial court err by denying the Motion to Suppress where 

the police lacked probable cause to search Keys?

Keys’ Brief at 4.

Keys argues that he was subjected to an investigative detention when 

Officer Kusowski physically restrained him from walking away and then 

grabbed at his waistband. Id. at 10. He contends that the surrounding 

circumstances did not provide reasonable suspicion: Officer Rycek was unsure 

if Keys had a firearm, law-abiding citizens are often nervous in a police 

encounter, and Keys had his arms up because he had objects in his hands. 

Id. at 11–12. Keys notes that possession of a concealed firearm alone does 

not provide reasonable suspicion to detain an individual and check whether he 

is licensed to carry it. Id. at 12–13.

Keys further argues that Officer Kusowksi required probable cause to 

search him to recover the firearm. Id. at 13. Keys reasons that because the 

police lacked reasonable suspicion, they did not have probable cause either. 

Id. at 14. He therefore concludes that the firearm should have been 

suppressed. Id.

The Commonwealth emphasizes that the police interaction was a mere 

encounter until Officer Kusowski grabbed Keys. Commonwealth’s Brief at 7. 

Considering the officers’ observations until that moment, the Commonwealth 

points to multiple factors that gave reasonable suspicion to stop Keys and pat 
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him down to search for weapons—in a high-crime area, Keys adjusted his 

waistband immediately upon seeing a police car, denied that he was armed, 

appeared nervous, blocked his waistband with his hands, turned, and stepped 

backwards. Id. at 9–10. The Commonwealth submits that police could thus 

stop and frisk Keys without a showing of probable cause. Id. at 11–13.

* * *

The following principles guide our review:

An appellate court’s 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, the appellate court is bound by those 

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 plenary review.

Commonwealth v. Jones, 266 A.3d 1090, 1093–94 (Pa. Super. 2021) 

(quoting Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 

2015)). Because Keys challenges the suppression court’s legal conclusions, 

not its factual findings, we set forth the applicable law.

The Fourth Amendment of the United States Constitution and Article I, 

Section 8 of the Pennsylvania Constitution protect against unreasonable 
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searches and seizures. Commonwealth v. Hicks, 208 A.3d 916, 924–25 

(Pa. 2019). The protections are coextensive in requiring reasonable suspicion 

for an officer to “stop and frisk” an individual under Terry v. Ohio, 392 U.S. 

1 (1968). Id. at 925 (citing Commonwealth v. Brown, 996 A.2d 473, 476 

(Pa. 2010), and Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997)).

The law defines reasonable suspicion as follows:

Reasonable suspicion is a less stringent standard than probable 

cause necessary to effectuate a warrantless arrest, and depends 

on the information possessed by police and its degree of reliability 

in the totality of the circumstances. In order to justify [an 

investigative detention], a police officer must be able to point to 

“specific and articulable facts” leading him to suspect criminal 

activity is afoot. Commonwealth v. Melendez, 676 A.2d 226,

228 (Pa. 1996). In assessing the totality of the circumstances, 

courts must also afford due weight to the specific, reasonable 

inferences drawn from the facts in light of the officer’s experience 

and acknowledge that innocent facts, when considered 

collectively, may permit the investigative detention. 

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).

Brown, 996 A.2d at 477 (citation format altered).

Notably, an officer must have separate justifications to initiate an 

investigative detention (the stop) and to perform a pat-down search for 

weapons (the frisk):

First, the investigatory stop must be lawful. That requirement is 

met in an on-the-street encounter, Terry determined, when the 

police officer reasonably suspects that the person apprehended is 

committing or has committed a criminal offense. Second, to 

proceed from a stop to a frisk, the police officer must reasonably 

suspect that the person stopped is armed and dangerous.

Hicks, 208 A.3d at 921 (quoting Arizona v. Johnson, 555 U.S. 323, 326–27 

(2009)).
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In Hicks, our Supreme Court held that a person’s mere possession of a 

concealed firearm in public does not create reasonable suspicion that he is 

dangerous, so as to justify briefly detaining him to investigate if he is properly 

licensed. Id. at 947 (rejecting Commonwealth v. Robinson, 600 A.2d 957 

(Pa. Super. 1991)). Therefore, where the police received a report that a driver 

was carrying a firearm in a high-crime area of Philadelphia, they lacked 

reasonable suspicion to stop him. Commonwealth v. Price, 225 A.3d 1118, 

1122–23 (Pa. Super. 2019) (“There was no evidence that the police had 

reason to believe that Price was carrying a firearm illegally or was engaged in 

any other illegal activity. Nor did the police observe Price do anything illegal 

before stopping him.”).

However, police may consider contextual factors to reasonably suspect 

that an individual’s possession of a gun is illegal. See Hicks, 208 A.3d at 

938–39 (recognizing that firearm possession may be suspicious in light of 

other factors, such as presence in a high crime area); cf. Commonwealth v. 

Barr, 266 A.3d 25, 41–42 (Pa. 2021) (drawing from Hicks to conclude that 

while the smell of marijuana alone does not provide probable cause to search 

a vehicle, it may be considered among other factors). Factors that are 

otherwise innocent, which can combine to support reasonable suspicion,

include angling one’s body away from the police, Commonwealth v. Carter, 

105 A.3d 765, 775 (Pa. Super. 2014) (en banc), and making furtive 

movements with extreme nervousness, Commonwealth v. Buchert, 68 A.3d 

911, 916–17 (Pa. Super. 2013).
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Finally, with respect to conducting a Terry frisk, an officer may remove 

an object from a suspect’s clothing “under one of two justifications”:

Pursuant to Terry, . . . a police officer may remove an object from 

within a suspect’s clothing under the reasonable suspicion that the 

object is a weapon. If, however, during the frisk the police officer 

is able to determine that the object is not a weapon, . . . the officer 

may only remove the object if, by touch, it is immediately 

apparent that the object is illegal contraband.

Interest of T.W., 261 A.3d 409, 422 (Pa. 2021) (drawing from 

Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001) (plurality), and 

Minnesota v. Dickerson, 508 U.S. 366 (1993)). If an officer does not

determine during a frisk that an unknown object is not a weapon, the officer 

requires only reasonable suspicion to remove the object, not probable cause. 

Id. at 423.

Turning to Keys’ case, both parties advocate that the police interaction 

became an investigative detention when Officer Kusowski physically grabbed 

Keys. Keys’ Brief at 10; Commonwealth’s Brief at 7. The case thus turns on

whether the totality of the circumstances at that moment led the police to 

reasonably suspect that Keys was committing a criminal offense (to justify a

stop) and was armed and dangerous (to justify a frisk). Hicks, 208 A.3d at 

921.

The suppression court analyzed this issue as follows:

In [a] high crime area of the city, Officer Rycek observed 

[Keys] glance at [the] marked cruiser and immediately adjust a 

concealed object in his front waistband. [Keys] quickened his 

pace after Officer Rycek called to him from the cruiser. And 

though he turned to face Officer Kusowski who approached on foot 
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a few moments later, [Keys] purposefully rotated his hips and held 

his arms so as to disguise the silhouette of his weapon. Officer 

Kusowski reasonably inferred that these were not the actions of 

someone licensed to carry a firearm but rather the actions of 

someone unlicensed to carry one. That there was, perhaps, an 

innocuous explanation for [Keys’] furtive actions does not defeat 

the rationality of Officer Kusowski’s inferences. Together, these 

factors were sufficient to permit the stop of [Keys].

Although the frisk quickly followed the stop, it too was 

constitutionally justified. Officer Kusowski testified at the hearing, 

“[i]t appeared to me that [Keys] was trying to conceal that front 

waist from my view. And with his hands there, Your Honor, I was 

afraid he may grab at the firearm, so I frisked him.” Officer 

Kusowski reasonably suspected [Keys] of firearm violations. 

[Keys’] furtive movements, cagey behavior, and the proximity of 

his hands to the concealed weapon were sufficient to permit the 

frisk.

Suppression Court Opinion, 12/14/22, at 4–5 (citations omitted).

We agree with the suppression court’s analysis and adopt it as our own. 

Based on Hicks, the police needed reasonable suspicion, not just that Keys 

was carrying a firearm, but that he was doing so illegally—concealed, without 

a license in Philadelphia, or after being convicted of an enumerated crime. 

See 18 Pa.C.S.A. §§ 6105, 6106, 6108. Keys’ actions to obscure his waist 

from the officers led the police to reasonably suspect that his firearm 

possession was illegal, such that they could temporarily detain him for further 

investigation. Carter, supra; Buchert, supra. While Keys’ movements 

could have a benign explanation, this does not negate the officers’ reasonable 

suspicion. Brown, 996 A.2d at 477. Additionally, Officer Kusowski could frisk 

Keys’ waistband because he reasonably suspected that Keys’ actions of 

carrying a firearm illegally rendered him armed and dangerous.
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When Officer Kusowski grabbed the object from Keys’ waistband, he had 

not determined that it was not a weapon. Therefore, contrary to Keys’ 

assertion, the officer required reasonable suspicion, not probable cause, to 

recover the gun. T.W., supra. As described above, Keys’ motions to obscure 

his waist, where the officers suspected he had a weapon, provided reasonable 

suspicion that he was carrying a firearm illegally. For these reasons, the 

suppression court did not err in denying Keys’ motion to suppress the gun.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2023