J-A31036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

TYSHIR MORRISON

 Appellant No. 2416 EDA 2015

Appeal from the Judgment of Sentence July 27, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0001150-2015

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

MEMORANDUM BY FITZGERALD, J.: FILED MAY 10, 2017

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,1firearms not to 

be carried without a license,2and 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 

 

*

Former Justice specially assigned to the Superior Court. 

1 18 Pa.C.S. § 6105(a)(1). 

2 18 Pa.C.S. § 6106(a)(1). 

3 18 Pa.C.S. § 6108. 
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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.4Id. 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. 

 

4 No description of Appellant’s companion was given. 
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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.
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* * *

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. 
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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 
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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 
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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, 988 A.2d 649, 654 (Pa. 

2010)] []. Moreover, appellate courts are limited to 

reviewing only the evidence presented at the suppression 
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hearing when examining a ruling on a pre-trial motion to 

suppress. See In re L.J., [] 79 A.3d 1073, [1080] ([Pa.] 

2013).

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

denied, 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. 

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. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en banc) 

(some citations omitted). 

“If a reasonable person does not feel free to terminate an encounter 

with the police and leave the scene, then a seizure of that person has 

occurred.” Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 

2002) (citation omitted). However, 
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[t]he 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. 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. . . . [A]s the Supreme 

Court has long recognized, Terry v. Ohio, 392 U.S. 1 [] 

(1968) is an exception to the textual standard of probable 

cause. A suppression court is required to take[] into 

account the totality of the circumstances—the whole 

picture. 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. In 

addition, an officer may conduct a limited search, i.e., a 

pat-down of the person stopped, if the officer possesses 

reasonable suspicion that the person stopped may be 

armed and dangerous. 

Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014) (en 

banc) (some quotation marks and citations omitted), appeal denied, 117 

A.3d 295 (Pa. 2015).

In determining whether reasonable suspicion exists for an 

investigative detention, or as it is also known in the 

common legal vernacular, a “Terry stop,” the inquiry is 

the same under both the Fourth Amendment of the United 

States Constitution and Article 1, § 8 of the Pennsylvania 

Constitution. “The fundamental inquiry is an objective 

one, namely, whether ‘the facts available to the officer at 

the moment of the intrusion warrant a man of reasonable 

caution in the belief that the action taken was

appropriate.’” In order to determine whether the police 

had a reasonable suspicion to subject an individual to an 

investigative detention, the totality of the factual 

circumstances which existed at the time of the 

investigative detention must be considered. “Among the 

factors to be considered in establishing a basis for 

reasonable suspicion are tips, the reliability of the 
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informants, time, location, and suspicious activity, 

including flight.”

Ayala, 791 A.2d at 1208 (citations omitted). 

“[E]ven where the circumstances surrounding an individual’s conduct 

suggest ongoing illegality, the individual may not be detained unless his or 

her personal conduct substantiates involvement in that activity.” 

Commonwealth v. Beasley, 761 A.2d 621, 626 (Pa. Super. 2000) 

(citations omitted). “This standard . . . requires a particularized and 

objective basis for suspecting the particular person stopped of criminal 

activity.” Ayala, 791 A.2d at 1209 (citation and quotation marks omitted). 

[I]n order for a stop to be reasonable under Terry [], the 

police officer’s reasonable and articulable belief that 

criminal activity was afoot must be linked with his 

observation of suspicious or irregular behavior on the part 

of the particular defendant stopped. Mere presence near a 

high crime area . . . or in the vicinity of a recently reported 

crime . . . does not justify a stop under Terry.

Conversely, an officer’s observation of irregular behavior 

without a concurrent belief that crime is afoot also renders 

a stop unreasonable. 

Id. (citations omitted). A police officer’s assessment that an individual 

appears nervous “does not provide reasonable suspicion for an investigative 

detention.” Commonwealth v. DeHart, 745 A.2d 633, 637 (Pa. Super. 

2000) (citing Commonwealth v. Sierra, 723 A.2d 644 (Pa. 1999)). 

Moreover, “[o]ur Supreme Court has held that where a citizen approached 

by a police officer is ordered to stop . . . obviously a ‘stop’ occurs.” Ranson, 

103 A.3d at 77 (holding that the appellant was subjected to an investigative 
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detention at the time the police officers commanded him to stop) (citation 

and quotation marks omitted). “[P]ursuit by police constitutes a seizure 

under the law of this Commonwealth[; therefore,] a person may be seized 

even though he is moving away from the police.” Id. (citation omitted). 

Thus, the issue is whether police officers possess reasonable suspicion that 

the suspect was engaged in criminal conduct when they issued a command

to stop. Id. 

Furthermore, when analyzing a tip from an unknown source “we must 

determine whether under ‘the totality of the circumstances’ the informant’s 

tip established the necessary reasonable suspicion that criminal activity was 

afoot.” Ranson, 103 A.3d at 78 (citation omitted). “[Both] quantity and 

quality of information are considered when assessing the totality of the 

circumstances. If information has a low degree of reliability, then more 

information is required to establish reasonable suspicion.” Id. (citation 

omitted). 

[A] radio dispatch based on information provided from an 

informant whose identity is unknown, and which accuses 

an individual of involvement in criminal activity, will not, 

standing alone, provide the requisite basis for an 

investigatory detention of a person who happens to match 

the physical description of the accused individual provided 

by the tipster. . . . 

Because of its unreliability, an anonymous radio call 

alone is insufficient to establish a reasonable 

suspicion of criminal activity. The Court in 

[Commonwealth v. Jackson, 698 A.2d 571 (Pa. 

1997)] further explained that the fact that the police 

proceeded to the designated location and saw a 
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person matching the description in the call did not 

corroborate any alleged criminal activity. Since 

anyone can describe a person who is standing in a 

particular location, something more is needed to 

corroborate the caller’s allegations of criminal 

conduct. In the typical anonymous caller situation, 

the police will need an independent basis to establish 

reasonable suspicion. 

. . . When the police receive unverified information 

that a person is engaged in illegal activity, the police 

may observe the suspect and conduct an 

investigation. If police surveillance produces a 

reasonable suspicion of criminal conduct, the suspect 

may be stopped and questioned. 

Ayala, 791 A.2d at 1209-10 (quotation marks and some citations omitted). 

Instantly, we must first examine whether the encounter between 

Appellant and Officers Hogan and Parker rose to an investigative detention. 

See Carter, 105 A.3d at 768. Appellant and the other male were walking 

down the street five blocks away from where the robbery occurred when 

Officers Hogan and Parker stopped their patrol vehicle behind the two men

because they matched the suspects’ description. N.T. at 10-11, 17. Officer 

Parker then alighted from the patrol vehicle in full uniform and told the two 

males to stop. Id. at 11. Appellant continued walking while his companion 

stopped to talk to Officer Parker. Id. at 12. When Officer Hogan saw 

Appellant walking away, he then got out of the vehicle in full uniform and 

again told Appellant to stop. Id. at 12-13. Under these circumstances, it is

apparent that when the officers twice ordered Appellant to stop he was 

immediately subjected to an investigative detention. See Ranson, 103 
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A.3d at 77. Thus, a reasonable person in Appellant’s situation would not 

have felt free to terminate the encounter and leave the scene. See Ayala, 

791 A.2d at 1208. Accordingly, the Commonwealth’s assertion that the 

interaction between the officers and Appellant began as a mere encounter 

similar to that in Commonwealth v. Lyles, 97 A.3d 298 (Pa. 2014) is 

unavailing. Cf. Lyles, 97 A.3d at 306 (holding interaction in which a 

uniformed police officer approached the appellant and requested his 

identification did not amount to more than a mere encounter). 

Having concluded that Appellant was subjected to an investigative 

detention when the officers told him to stop, we must next examine whether 

Officers Hogan and Parker possessed reasonable suspicion that Appellant 

and the other male were engaged in criminal conduct when the officers 

issued the command to stop. See Ranson, 103 A.3d at 77. At the 

suppression hearing, Officer Hogan testified that Appellant and the other 

male were merely walking down the street when the officers pulled over 

their patrol vehicle. N.T. at 17. He further testified that Appellant did not 

run but instead began slowly walking away while the other man spoke with 

Officer Parker. Id. at 12, 20. Officer Hogan did not notice that Appellant’s 

pocket appeared to be weighed down or that there was a handle of a gun 

sticking of his pocket until after he told Appellant to stop, approached him, 

and asked him to remove his hands from his pockets. Id. at 19. Officer 

Hogan further testified that the only reason why they stopped Appellant and 
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the other male was because they matched the description of the robbery 

suspects. Id. at 17. Nevertheless, the suspects’ description was provided 

by an unknown source and the radio call only described the suspects as two 

black males wearing black hoodies, blue jeans and masks.

5

Id. at 7-8. No 

further physical description of the suspects was provided.6 Appellant, a 

black male, was wearing a black hoodie with grey sweatpants when the 

officers stopped him. Id. at 9. Thus, under the totality of the 

circumstances, the quality and quantity of the information provided by the

unknown source was insufficiently reliable to establish reasonable suspicion. 

See Commonwealth v. Coleman, 130 A.3d 38, 46-47 (Pa. Super. 2015) 

(holding an anonymous tip that the appellant was selling drugs and had 

been cited for driving with a suspended license was a bare bones allegation 

that fell short of the quality and quantity of information required to 

corroborate a search of the appellant’s residence); see also Ranson, 103 

A.3d at 78; Ayala, 791 A.2d at 1209-10; DeHart, 745 A.2d at 637 

(determining a radio police tip from an unknown source that reported a 

 

5 Although the Commonwealth argues that the tip was provided by an 

eyewitness and not an anonymous source, this is pure speculation. See

Commonwealth’s Brief at 17. The Commonwealth failed to present any 

evidence at the suppression hearing to prove this allegation; thus, it failed to 

meet its burden. See Pa.R.Crim.P. 581(H); see also In re L.J., 79 A.3d at 

1080 (stating 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). 

6 The Commonwealth presented no testimony regarding the companion’s 

clothing. 
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suspicious slow moving vehicle was too vague and was unsupported by 

indicia of reliability to provide the police officers with reasonable suspicion of 

criminal activity for an investigative detention). Moreover, the fact that 

Appellant appeared nervous after the officers stopped and approached him 

does not provide reasonable suspicion for an investigative detention. See 

DeHart, 745 A.2d at 637. 

Viewing the totality of the circumstances, Appellant’s personal conduct 

when he was stopped did not support an objective basis that he was 

involved in any illegal activity. See Ayala, 791 A.2d at 1208, 1209; 

Beasley, 761 A.2d at 626. Therefore, the trial court erred in denying 

Appellant’s motion to suppress the firearm, as the officers lacked reasonable 

suspicion to stop and search Appellant pursuant to an investigative 

detention. See Carter, 105 A.3d at 768-69; Ayala, 791 A.2d at 1208. 

Accordingly, we reverse the trial court’s denial of Appellant’s suppression 

motion, vacate the judgment of sentence, and remand for proceedings 

consistent with this memorandum. 

Judgement of sentence vacated. Case remanded. Jurisdiction 

relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2017