J-A19018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DARIEN MCPHERSON

Appellee No. 1446 EDA 2015

Appeal from the Order Entered April 10, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013625-2014

CP-51-CR-0013652-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: Filed October 5, 2016

The Commonwealth brings this appeal from the order entered April 10, 

2015, in the Court of Common Pleas of Philadelphia County, granting the 

suppression motion filed by Darien McPherson.1 The Commonwealth raises 

the following issue: “Did an experienced police officer have reasonable 

suspicion to detain [McPherson] where the officer was responding to reports 

of a gunpoint robbery in progress, minutes earlier, in a high crime area, a 

bystander pointed to [McPherson’s] location, and [McPherson] matched the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The Commonwealth has certified in the notice of appeal that the trial 

court’s order terminates or substantially handicaps the prosecution. Thus, 

this appeal is properly before this court. See Pa.R.A.P. Rule 311(d).
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description of the armed suspect?” Commonwealth’s Brief, at 5.2 Based 

upon the following, we affirm. 

The trial court has summarized the facts of this case, as follows:

On September 29, 2014, Sergeant David Armstrong was on duty 

when he received a radio call at 8:18 pm concerning a person 

with a gun in the area of Frankford Avenue and Orleans Street in 

Philadelphia. The Sergeant described that section of the city as a 

high-crime, high-narcotics area where he had made at least a 

half dozen gun arrests. The radio call contained flash 

descriptions of two black males. One was described as tall, 

wearing a white shirt and blue jeans. The second male was said 

to be shorter, wearing a red or orange shirt, and blue jeans. Less 

than a minute later, Sergeant Armstrong received a second radio 

call about a robbery in progress. The same flash description for 

two black males was given. Sergeant Armstrong responded to 

the calls, drove to the area of Frankford Avenue and Orleans 

Street, and began to look for the two males. While searching on 

Emerald Street, Sergeant Armstrong saw an unknown man point 

a finger down Stella Street towards Frankford Avenue. The 

sergeant interpreted this as indicating that someone matching 

the flash description was heading in that direction.

Sergeant Armstrong’s search continued to the 2000 block of 

Bellmore Street, where he observed Mr. McPherson, whom 

Sergeant Armstrong estimated to be about six feet, six inches 

tall. Mr. McPherson was wearing a white t-shirt and blue jeans. 

Mr. McPherson was walking eastbound on Bellmore Street 

accompanied by a black female. Around 8:25 pm, Sergeant 

Armstrong drove up to Mr. McPherson, exited the patrol car and 

immediately grabbed Mr. McPherson by the rear belt area of his 

pants. After grabbing Mr. McPherson, Sergeant Armstrong 

observed the butt of a handgun protruding from the rear pocket 

of Mr. McPherson’s pants. An Officer Perez pulled up to the area 

during the stop. Upon seeing Officer Perez, Mr. McPherson 

____________________________________________

2 Although not ordered by the trial court, the Commonwealth, on May 8, 

2015, filed a Pa.R.A.P. 1925(b) statement of matters complained of on 

appeal.
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attempted to flee. After a short struggle, Sergeant Armstrong 

and Officer Perez placed Mr. McPherson in custody and seized 

from him the handgun Sergeant Armstrong had seen only after 

grabbing Mr. McPherson, one packet of heroin, and one packet of 

cocaine. Further investigation cleared Mr. McPherson as a 

suspect in the alleged robbery and two other males were 

apprehended as suspects.

Trial Court Opinion, 11/9/2015, at 1–2.

Our standard of review is well-settled:

When reviewing the propriety of a suppression order, an 

appellate court is required to determine whether the 

record supports the suppression court’s factual findings 

and whether the inferences and legal conclusions drawn 

by the suppression court from those findings are 

appropriate. Where the defendant prevailed in the 

suppression court, we may consider only the evidence of 

the defense and so much of the evidence for the 

Commonwealth as remains uncontradicted when read in 

the context of the record as a whole. Where the record 

supports the factual findings of the suppression court, we 

are bound by those facts and may reverse only if the 

legal conclusions drawn therefrom are in error. However, 

where the appeal of the determination of the suppression

court turns on allegations of legal error, "the suppression 

court’s conclusions of law are not binding on an appellate 

court, whose duty it is to determine if the suppression

court properly applied the law to the facts." 

Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) (citation 

and internal citations omitted).

There are three levels of interactions between citizens and police 

officers: a mere encounter, an investigative detention, and a custodial 

detention or an arrest. Commonwealth v. Coleman, 19 A.3d 1111, 1115 
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(Pa. Super. 2011). Here, the parties do not dispute that police conducted an 

investigatory detention.3 An investigatory detention or “Terry”

4

stop “is 

temporary ... and does not possess the coercive conditions consistent with a 

formal arrest. Since this interaction has elements of official compulsion it 

requires reasonable suspicion of unlawful activity.” Id. at 1115 (citation 

omitted).

The police are permitted to stop and briefly detain citizens only 

when they have reasonable suspicion, based on specific and 

articulable facts, that criminal activity may be afoot. 

Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 

1156 (2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct. 

1868, 1884, 20 L. Ed. 2d 889 (1968)); Commonwealth v. 

Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996); 

Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276, 

280 (1969). 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. 

Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677 

(1999); Commonwealth v. Jackson, 548 Pa. 484, 488, 698 

A.2d 571, 573 (1997). “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.’” Zhahir, 

supra, at 552, 751 A.2d at 1156 (citing Terry, supra, 392 U.S. 

at 21-22, 88 S. Ct. at 1880). 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. Id. (citing United States v. Cortez, 449 U.S. 411, 

417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). “Among the 

____________________________________________

3 See N.T., 4/10/2015, at 28, 40. 

4 Terry v. Ohio, 392 U.S. 1 (1968).
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factors to be considered in establishing a basis for reasonable 

suspicion are tips, the reliability of the informants, time, 

location, and suspicious activity, including flight.” 

Commonwealth v. Gray, 2001 PA Super 262, 784 A.2d 137, 

142 (Pa.Super. 2001).

Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002). 

Here, the trial court determined police had no reasonable suspicion to 

stop McPherson:

In this case, the stop of Mr. McPherson was based on two 

anonymous phone calls that provided general descriptions of the 

height, race, and clothing of two black men who allegedly 

possessed a gun and were involved in a robbery. In addition, 

Sergeant Armstrong observed an unknown man point his finger in 

the direction of Frankford Avenue. Both calls provided the same 

amount of information except that the second caller indicated that 

individuals of the same description were involved in a robbery in 

progress.

The point of finger by the unknown male is of de minimis value in 

the totality of the circumstances analysis. The unknown male 

pointed in a general direction and not at Mr. McPherson. The 

record does not reflect why the unknown male pointed, or if he 

had witnessed any criminal or suspicious activity. Even if the 

unknown male saw a tall black male in jeans and a white t-shirt 

on the streets of Philadelphia, it does not corroborate the alleged 

criminal activity in the anonymous calls. Therefore, independent 

corroboration was required. See Com. v. Hawkins, 692 A.2d 

1068, 1070-71 (Pa. 1997). (“[S]ince there is no gun exception to 

the Terry requirement for reasonable suspicion of criminal 

activity, in the typical anonymous caller situation, the police will 

need an independent basis to establish the requisite reasonable 

suspicion.”)

Mr. McPherson was observed walking down the block and not 

engaged in any activity that could be described as suspicious. 

Since the attempted flight and the observation of the gun did not 

occur until after Sergeant Armstrong grabbed Mr. McPherson, it 

does not factor into the reasonable suspicion analysis because the 

only relevant facts are the ones available to the officer 

immediately before the stop. See [Commonwealth v.] Gray, 
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784 A.2d [137, 142 (Pa. Super. 2001)]. While the events in 

question occurred in a high-crime area, this factor alone is an 

insufficient basis for a Terry stop unless coupled with 

circumstances such as suspicious activity or flight by Mr. 

McPherson. See [In the Interest of] M. D., 781 A.2d [192, 197 

(Pa. Super. 2001)] (explaining when a combination of innocent 

facts can give rise to reasonable suspicion). In short, Sergeant 

Armstrong’s investigation produced no reason to stop Mr. 

McPherson independent of the anonymous phone calls and an 

unexplained point of finger. 

Trial Court Opinion, 11/6/2015, at 4–5.

The Commonwealth asserts that the trial court “focused on the fact 

that the stop was purportedly based upon ‘two anonymous phone calls,’ 

[b]ut the sergeant testified that an officer went to the location of the robbery 

and sent out a ‘flash’ regarding the crime.” Commonwealth’s Brief at 15. 

The Commonwealth argues “[Sergeant] Armstrong stopped [McPherson] 

after that flash was sent out. While the individual the officer encountered 

was not named at the suppression hearing, the fact that information was 

supplied in person substantially enhanced its reliability.” Id. at 15, citing In 

the Interest of D.M. 727 A.2d 556, 558 (Pa. 1999); Commonwealth v. 

Barber, 889 A.2d 587, 593 (Pa. Super. 2005).

The Commonwealth further claims, “even assuming arguendo that all 

of the calls were ‘anonymous,’ the stop was still entirely proper” because 

“[a]nonymous tips may be relied upon to support an investigatory stop 

where police have corroborating information which, in combination, 

establishes a reasonable suspicion of criminal activity.” Id. at 16. We 

address these arguments sequentially.
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The Commonwealth contends, “In the first place, Sergeant Armstrong 

testified that one of the reports regarding the crime was issued by a police 

officer at the scene, which is a more reliable source of information than an 

anonymous tip.” Commonwealth’s Brief at 22, citing N.T., 4/10/2015, at 18. 

The Commonwealth points to Sergeant Armstrong’s cross-examination, 

testimony where he stated:

A There were multiple radio calls, Your Honor. There was also 

an officer that arrived on location with the complainant that put 

out an additional flash. The complainant was brought to the 

location, but he was negatively ID’d for the robbery and the 

person with a gun call. 

Q After my client was already in custody, the complainant 

arrived on the scene?

A An officer was on location with the complainant at Frankford 

and Orleans Street. So radio calls came out for the job. An 

officer responded to that location. An additional flash was put 

out by an officer on location. This male was stopped. The 

complainant was brought to the location where this male was 

stopped, where this male was negatively ID’d for that incident. 

He was still under arrest for the gun. A short time later, two 

other males were apprehended in regards to the actual robberies 

at Frankford and Orleans. 

N.T., 4/10/2015, at 18.

Relying on Sergeant Armstrong’s testimony that “[a]n additional flash 

was put out by the officer on location [and t]his male was stopped,” the 

Commonwealth claims the “flash” information preceded Sergeant 

Armstrong’s stop of McPherson. We are not persuaded by the 

Commonwealth’s assertion. 
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We note that although there were radio calls that were played at the 

suppression hearing, they were not moved into evidence and are not part of 

the certified record. See N.T., 4/10/2015, at 14, 19, 28. Here, there is no 

evidence in the record that Sergeant Armstrong knew the source of the radio 

calls. Furthermore, Sergeant Armstrong’s testimony did not indicate when 

the “additional flash” was sent, or if he relied on it in stopping McPherson. 

As such, we find no basis upon which to reject the trial court’s determination 

that the only information possessed by Sergeant Armstrong at the time he 

stopped McPherson were two anonymous phone calls.

We next consider the Commonwealth’s argument that even if the tips 

were anonymous, police had reasonable suspicion in this case. Here, the 

Commonwealth relies on, inter alia, Navarette v. California, 134 S.Ct. 

1683 (U.S. 2014) and Commonwealth v. M.Jackson, 678 A.2d 798 (Pa. 

Super. 1996).

In Navarette, a 911 caller reported that a vehicle, identified as a 

silver Ford pickup truck with a specific license plate number, had run her off 

the road. Police dispatch then sent out a broadcast with that information. A 

police officer responded to the broadcast and, approximately thirteen 

minutes later, located the vehicle identified during the call. Five minutes 

later, he executed a traffic stop, although he had not observed any 

suspicious driving. As the officer approached the truck with a second officer 
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who had arrived on the scene, they smelled marijuana. In the truck bed, 

they discovered thirty pounds of marijuana. 

The United States Supreme Court upheld the stop, ruling that the 911

call was sufficiently reliable and provided reasonable suspicion for the traffic 

stop. The Court held that a 911 call “bore adequate indicia of reliability for 

the officer to credit the caller’s account,” and constituted a reliable tip. 

Navarette, 134 S.Ct. at 1688. The Navarette Court reasoned “[a] 911 call 

has some features that allow for identifying and tracing callers, and thus 

provides some safeguards against making false reports with immunity.” Id. 

at 1689.

In M.Jackson, an officer received a report regarding a robbery in 

progress with the suspect described as “wearing a black baseball hat and a 

black jacket.” Id., 678 A.2d at 799. The officer saw Jackson, who matched 

that description about two and one-half blocks away from the crime scene, 

and only five minutes after receiving the call on the radio. Id. at 800. After 

asking Jackson to stop, the officer asked him from where he was coming. 

Id. Jackson replied his girlfriend’s place. Id. The officer frisked Jackson and 

recovered a gun. Id. This Court held that while the officer did not observe 

any unusual or suspicious conduct, “other integral factors ... create[d] the 

requisite ‘specific and articulable facts’ that justif[ied] [the officer’s] stop[.]” 

Id. at 801. These factors included that Jackson exactly fit the meager 

description of the suspect given over police radio, Jackson was temporally 
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and spatially proximate to the crime scene, the crime reported was a 

“serious felony,” and the confrontation between Jackson and the officer 

occurred late in the evening in an area that was admittedly dangerous. Id. 

Relying on Navarette, the Commonwealth asserts the nature of the 

crime — a robbery in progress — “suggested that the report came from an 

eyewitness to the crime, establishing the basis of the source’s knowledge. 

This is an important factor further supporting the reliability of the tip.” 

Commonwealth Brief at 17–18. Relying on M.Jackson, the Commonwealth 

argues McPherson matched the description of the suspect, pointing out that 

McPherson was six feet six inches tall, and wearing a white shirt and blue 

jeans; Sergeant Armstrong knew the location where he encountered 

McPherson was a “violent and crime-ridden area;”5and McPherson was 

stopped only seven minutes after the call regarding the robbery and in the 

vicinity of the crime.6 See id. at 17–18. In addition, the Commonwealth 

asserts the circumstances of this case present even a stronger case for an 

investigatory stop because Sergeant Armstrong was directed to McPherson’s 

location by a bystander who “flagged [him] down.” Commonwealth’s Brief 

at 19, citing N.T., 4/10/2015, at 21–22, 24, 27. 

____________________________________________

5 N.T., 4/10/2015, at 17. 

6

Id. at 23–24.
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McPherson counters that the radio calls were anonymous tips, that the 

meaning of the bystander’s finger pointing is speculative, and that Sergeant 

Armstrong possessed no corroborative information. McPherson, at oral 

argument, maintained that the report of a “robbery in progress” does not 

indicate contemporaneous information like the 911 call in Navarette. 

Additionally, McPherson argues M.Jackson made no distinction between 

stops based upon anonymous tips and stops based on tips from known 

informants. In support of his position, McPherson cites, inter alia, 

Commonwealth v. C.Jackson, 698 A.2d 571 (Pa. 1997), Commonwealth 

v. Hawkins, 692 A.2d 1068 (Pa. 1997) (OAJC), and Florida v. J.L., 529 

U.S. 266 (2000). See McPherson’s Brief at 18–19.

In C.Jackson, at 10:23 p.m., police received a police radio report of a 

man in a green jacket carrying a gun, with no other details except location. 

Within two minutes of receiving the call, police arrived at the location where 

there were a number of individuals. The defendant was the only individual in 

a green jacket. There was no evidence he acted suspiciously. However, a 

police officer stopped the defendant and searched him. As he was being 

searched, a small key box fell next to him, which contained fourteen packets 

of cocaine. C.Jackson, supra, 698 A.2d at 572. The Supreme Court held 

that such an anonymous tip, without independent police corroboration 

producing reasonable suspicion of criminal activity, is insufficient to justify a 

stop and frisk. The Court reasoned as follows:
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In [Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997)], 

the Philadelphia police responded to an anonymous telephone 

report that there was a man with a gun at the corner of 

Sydenham and York Streets. The suspect was described as a 

black male wearing a blue cap, black jeans and a gold or 

brownish coat. We held that such allegations, without more, did 

not constitute reasonable grounds for the police to suspect that 

the individual was armed and dangerous:

If 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.

Hawkins, 692 A.2d at 1070. Thus the details provided by the 

caller in this case were insufficient, even when corroborated, to 

satisfy the reasonable suspicion standard. 

Id., 698 A.2d at 574-575.

In J.L., police received an anonymous tip that “a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a 

gun.” J.L., supra, 529 U.S. at 268. Officers proceeded to the bus stop, and, 

when they arrived there, they saw three black males, one of whom was 

wearing a plaid shirt. “Apart from the tip, the officers had no reason to 

suspect any of the three of illegal conduct. The officers did not see a firearm, 

and J.L. made no threatening or otherwise unusual movements.” Id.

Nevertheless, one officer directed J.L. to place his hands up, frisked him, and 
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found a gun. Id. The J.L. Court rejected modifying Terry to create a 

“firearm exception,” and ruled that the stop and search violated the Fourth 

Amendment. Id. at 272–273.

Having carefully reviewed this record, we agree with the trial court 

that Sergeant Armstrong possessed only two anonymous tips, without any 

corroborating information. While the Commonwealth tries to align the report 

of robbery in progress with the 911 call in Navarette, we are not persuaded 

by this argument since there is no identifying information for the source that 

would lend the report a higher degree of reliability. Moreover, we find the 

decisions that address anonymous tips — C.Jackson, Hawkins and J.L. —

to be controlling here. Additionally, the Commonwealth relies on Sergeant 

Armstrong’s testimony that he was “flagged down” 7 by a bystander; 

however, this testimony only established that the officer saw the bystander 

was pointing towards Frankford Avenue, without any indication that he was 

specifically directing the officer to McPherson.8 

Here, Sergeant Armstrong’s justification for grabbing McPherson was 

based solely on his observations that McPherson satisfied the generic 

____________________________________________

7 N.T., 4/10/2015, at 24.

8 When Sergeant Armstrong was questioned on redirect examination as to 

“how [was it] this man flagged you down,” he explained that as he “was 

coming down the block [in his police vehicle, the individual was] pointing in 

the direction towards the area of Frankford and Bellmore.” N.T., 4/10/2015, 

at 27 (emphasis added). 
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description and location information reported in the police radio calls. 

Sergeant Armstrong observed nothing suspicious about McPherson’s 

behavior before the stop — McPherson was simply walking down the street 

with a female. Therefore, we agree with the suppression court that the facts 

of this case warrant suppression. Accordingly, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2016