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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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.

____________________________________________

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

____________________________________________

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