J-A12008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

SHAUN JACKSON,

                            Appellee                      No. 1678 EDA 2015


                  Appeal from the Order Entered May 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012272-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED SEPTEMBER 16, 2016

        This is the Commonwealth’s appeal from the trial court’s order

granting    Appellant’s     motion    to   suppress   evidence   seized   from,   and

statements made by Appellee, Shaun Jackson.               After careful review, we

affirm.

        The trial court summarized the pertinent facts as follows:

              Officer Brian Smith testified that on October 11, 2014, at
        approximately 11:13 [p.m.], he and his partner, Officer Dill,
        toured the area of the 3400 block of Kensington Avenue in a
        marked police vehicle. They were in the area in response to a
        radio call for [a reported] theft at the location of 1127 East Tioga
        Street, which is one block away from 3400 Kensington Avenue.
        Officer Smith testified that originally the flash information was
        for a Hispanic male wearing a black hoodie and black pants who
        allegedly broke into a vehicle at 1127 East Tioga Street. Two
        minutes later, after another unit arrived at the location, the
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*
    Former Justice specially assigned to the Superior Court.
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      Officers received supplemental information from the owner of
      the vehicle that it was actually a black male, approximately 28
      years old with a beard, wearing all black. Five minutes later, as
      they were heading towards East Tioga Street, the Officers
      merely observed the back of [Appellee] walking alone on the
      3400 block of Kensington Avenue. Officer Smith testified that
      [Appellee] was a black male and wore a black hooded jacket,
      black sweatpants, and black sneakers.1
         1
           On the … [r]eport[] prepared by Officer Dill, [Appellee]
         was described as wearing a black hat, black hooded
         jacket, and black pants.

         Officer Dill stopped the marked police car, and both Officers,
      in full uniform, exited and approached [Appellee], one on each
      side. Officer Smith asked [Appellee] if he could speak to him for
      a minute and [Appellee] complied. Officer Smith then explained
      to [Appellee] that he is being "detained" for an alleged theft and
      asked for his identification. [Appellee] was fully cooperative and
      further complied with the Officers. When Officer Smith asked if
      [Appellee] had anything on his person that should be of concern,
      [Appellee] responded that he had a firearm on his person.
      Officer Dill recovered a Davis Industries .32 caliber handgun,
      loaded with seven live rounds of ammunition, inside a sock from
      the right rear of [Appellee]'s pant pockets. He also recovered
      additional four rounds of live ammunition in [Appellee]'s ID
      pouch. Complainant did not positively identify [Appellee] at the
      scene. Yet, the Officers placed [Appellee] under arrest for
      possession of firearm.2
             2
              Officer Smith testified that [Appellee] was a convicted
         felon and was not permitted to carry a handgun.

Suppression Court Opinion (SCO), 8/27/15, at 2-3 (citations omitted,

emphasis in original).

      Following his arrest, Appellee was charged with carrying a firearm

without a license, 18 Pa.C.S. § 6106; person not to possess a firearm, 18

Pa.C.S. § 6105; possessing a firearm with an altered manufacturer’s

number, 18 Pa.C.S. § 6110.2; and carrying a firearm in public in



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Philadelphia, 18 Pa.C.S. § 6108.    Following a suppression hearing held on

May 8, 2015, the lower court issued an order on May 19, 2015, granting

Appellee’s motion to suppress his statement to police and the seized

contraband.

     On May 28, 2015, the Commonwealth filed the instant interlocutory

appeal challenging the suppression court’s order, preemptively filed a

Pa.R.A.P. 1925(b) statement that same day, and also certified that the

suppression    order   had   terminated   or   substantially   handicapped   the

prosecution.   The suppression court issued its Rule 1925(a) opinion on

August 27, 2015.

     The Commonwealth now presents the following question for our

review:

     Where police received a report from a known citizen that she had
     seen a man breaking into her car and then found [Appellee],
     who matched the description of the perpetrator, only one block
     away from the crime scene walking alone on the street late at
     night, did the lower court err in ruling that the police did not
     have reasonable suspicion for an investigatory stop?

Commonwealth’s Brief, at 4.

     Our standard and scope of review is as follows:

           When reviewing an Order granting a motion to suppress
     we are required to determine whether the record supports the
     suppression court's factual findings and whether the legal
     conclusions drawn by the suppression court from those findings
     are accurate. Commonwealth v. Mistler, 590 Pa. 390, 912
A.2d 1265, 1268 (2006), citing Commonwealth v. Davis, 491
Pa. 363, 421 A.2d 179 (1980). In conducting our review, we
     may only examine the evidence introduced by appellee along
     with any evidence introduced by the Commonwealth which


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      remains uncontradicted.      Id. at 1268–1269. Our scope of
      review over the suppression court's factual findings is limited in
      that if these findings are supported by the record we are bound
      by them. Id. at 1269, citing Commonwealth v. Bomar, 573
Pa. 426, 826 A.2d 831, 842 (2003). Our scope of review over
      the suppression court's legal conclusions, however, is plenary.
      Id., citing Commonwealth v. Nester, 551 Pa. 157, 709 A.2d
879, 881 (1998).

Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008).

      Initially, we must resolve a factual dispute. In its primary analysis of

the   Commonwealth’s      claim,    the    suppression       court     acted   under   the

assumption that the police responded to an anonymous call. However, the

Commonwealth asserts that the police did not confront Appellee based

exclusively on an anonymous tip—while the initial flash information was

based on an anonymous call, a second radio call went out prior to the

encounter with Appellee, which indicated that the owner of the vehicle

subjected to the attempted theft (hereinafter “Victim”) had been directly

contacted. The Victim provided the police with a revised description of the

perpetrator, as well as the suspect’s direction of travel.              The suppression

court’s opinion acknowledges this fact; however, the court asserts that the

parties’ failure to object when the court initially summarized its findings of

fact on May 19, 2015, suggests that it did not err when it analyzed the stop

of Appellee as if it had been solely based on an anonymous call.

      We agree with the Commonwealth. The record clearly dovetails with

the Commonwealth’s description of the facts.                See N.T., 5/8/15, at 11

(Officer   Smith’s   testifying   that    the   initial   call   was    augmented      with



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information provided by the owner of the vehicle, providing the suspect’s

direction of travel and a modified physical description).    Furthermore, the

suppression court fails to provide any legal support for the notion that the

parties’ failure to object to its findings of fact consequently curtails our

review of the actual record. Moreover, the suppression court never states

that it found Officer Smith’s testimony not credible. Instead, it appears as if

the court merely misapprehended the record when it announced its findings

of fact when granting the suppression motion. Indeed, the factual summary

provided by the court in its Rule 1925(a) statement, above, acknowledges

that the initial call was anonymous, but that additional information was

received directly from a known source, the Victim.

      Nevertheless, the suppression court provided an alternative analysis in

its Rule 1925(a) opinion, in which the court assumed a known source while

still concluding that the stop of Appellee was made absent the requisite

reasonable suspicion. SCO, at 8-9. Accordingly, we will only consider the

court’s alternative analysis in addressing the Commonwealth’s claim, as well

as the aspects of the court’s primary analysis that do not expressly or

implicitly rely on the Victim’s anonymity.

      We begin with a summary of the pertinent law:

      [I]n assessing the lawfulness of citizen/police encounters, a
      central, threshold issue is whether or not the citizen-subject has
      been seized. Instances of police questioning involving no seizure
      or detentive aspect (mere or consensual encounters) need not
      be supported by any level of suspicion in order to maintain
      validity.    Valid citizen/police interactions which constitute
      seizures generally fall within two categories, distinguished

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        according to the degree of restraint upon a citizen's liberty: the
        investigative detention or Terry[1] stop, which subjects an
        individual to a stop and a period of detention but is not so
        coercive as to constitute the functional equivalent of an arrest;
        and a custodial detention or arrest, the more restrictive form of
        permissible encounters. To maintain constitutional validity, an
        investigative detention must be supported by a reasonable and
        articulable suspicion that the person seized is engaged in
        criminal activity and may continue only so long as is necessary
        to confirm or dispel such suspicion; see Commonwealth v.
        Lewis, 535 Pa. 501, 508, 636 A.2d 619, 623 (1994) (citation
        omitted); whereas, a custodial detention is legal only if based on
        probable cause.

Commonweatlh v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (footnote

omitted, citation omitted).

        Instantly, there is no dispute among the parties and the suppression

court that Appellee was “seized” for purposes of the Fourth Amendment.

Furthermore, the issue at hand is narrowly framed as to whether the police

possessed reasonable suspicion to stop Appellee in furtherance of their

investigation into the theft/attempted theft of the Victim’s vehicle. In that

regard:

        An investigatory stop, which subjects a suspect to a stop and a
        period of detention but does not involve such coercive conditions
        as to constitute an arrest, requires a reasonable suspicion that
        criminal activity is afoot.      Terry[,] 392 U.S. [at 21];
        Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226,
        228–30 (1996). Reasonable suspicion depends upon both the
        content of the information possessed by the police and its
        degree of reliability. Commonwealth v. Wilson, 424 Pa.Super.
        110, 115, 622 A.2d 293, 295–96 (1993) (quoting Alabama v.
        White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d
301 (1990)). Thus, quantity and quality of information are
____________________________________________


1
    Terry v. Ohio, 392 U.S. 1 (1968).



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      considered when assessing the totality of the circumstances. Id.
      If information has a low degree of reliability, then more
      information is required to establish reasonable suspicion. Id.

Commonwealth v. Wimbush, 750 A.2d 807, 811 (Pa. 2000).

      We acknowledge that Fourth Amendment jurisprudence recognizes

that anonymously supplied information is inherently less reliable than

information received from a known source. See e.g., Adams v. Williams,

407 U.S. 143, 146-47 (1972) (observing that a tip from an informer known

to the police carried enough indicia of reliability for the police to conduct a

Terry search/stop, even though the same tip from an anonymous informant

would likely not have done so). Therefore, by the same logic, we recognize

that information garnered from a known source is more reliable than

information deriving from an anonymous one. However, we are aware of no

authority which suggests that the presence of a known source of information

automatically results in reasonable suspicion to conduct a Terry stop. The

nature of the source is but one of many possible factors which inform the

totality-of-the-circumstances test for reasonable suspicion. Furthermore, it

is not enough that that a person matches the description of an informant,

“there   must   [also]   be   reasonable   suspicion   of   criminal   conduct[.]”

Commonwealth v. Hawkins, 692 A.2d 1068, 1070 (Pa. 1997).

      Here, the suppression court did not grant suppression premised solely,

or even primarily, on inaccuracies in the description provided by the Victim.

The court acknowledged that Appellee “partially fit the general description of

a black male wearing a black hooded jacket and black sweatpants.” SCO, at


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8. We find this assessment to be fairly accurate. The correlation between

Appellee and the description provided was neither exceptionally weak nor

exceptionally strong, although our view is that it tended toward the former.

Appellee’s race and clothing matched the description, as did his direction of

travel. However, no particularly unique characteristics were provided by the

Victim’s description, such as, for instance, the perpetrator’s height or

weight, whether he was a light- or dark-skinned black male, or whether he

had short or long hair.2 The Victim did not describe the presence or absence

of tattoos, scars, or any other physical markings.    The clothing described

was accurate as to color, but wearing all-black clothing is not particularly

unique, and the style of the clothing described was very general.

Surprisingly, although the Victim told police that the perpetrator had a

beard, Officer Smith never mentioned whether Appellee had a beard.

       Given this relatively general description, the heart of the suppression

court’s ruling was whether there was any corroboration that criminal activity

was afoot.     Although dealing with an anonymous tip, the Hawkins Court

discussed the relationship between an accurate description and the evidence

of criminal conduct, as follows:



____________________________________________


2
  Although the Victim described the perpetrator as wearing a hooded-jacket,
which could have made it difficult to identify certain features, the
information provided did not include whether the suspect was wearing the
hood over his head.



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      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.    As the United States Supreme Court
      observed in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983), 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. The fact that the subject of the
      call was alleged to be carrying a gun, of course, is merely
      another allegation, and it supplies no reliability where there was
      none before. And since 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.

Hawkins, 692 A.2d at 1070–71 (emphasis added).

      Instantly, there was only a bald accusation that an attempt had been

made to break into the tipster’s vehicle. However, there is no evidence in

the record that the police verified the alleged criminal conduct by an

investigation of the vehicle, or even through further discussions with the

Victim. There was only the assertion that someone had attempted to break

into a car, and we have no information regarding what, if anything, was

stolen, or even whether the theft was interrupted. The chance of a prank

report is certainly lessened by the fact that the tipster was not anonymous in

this case. See Adams, 407 U.S. at 146-47 (recognizing greater reliability

from a known source as opposed to an anonymous one because there is a

lesser risk of a false complaint). However, there is no evidence in the record



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that the Victim in this case was previously known to the police, another

relevant factor concerning the reliability of known informants, as discussed

in Adams. Id. at 146. Moreover, because there was no corroboration of

criminal activity, it is also possible that the Victim was simply mistaken in his

observations. Such unintentional conduct is not deterred because the tip is

from a known person rather than an anonymous call.

      Similarly, there was nothing about Appellee’s conduct or appearance

that corroborated the allegation of criminal conduct.      Appellee was, by all

accounts, fully compliant with the police when stopped.            Although his

direction of travel was consistent with the tip, Appellee was not observed to

be engaged in flight from the scene, nor were there any other observations

made by the police consistent with evasive behavior.          Appellee was not

observed carrying any instruments of crime consistent with the intent or

ability to break into a vehicle. The suppression court concluded that, in the

totality of these circumstances, the police lacked reasonable suspicion to

stop Appellee.

      We agree.    Given the conflicting descriptions, the relatively generic,

revised description and, most importantly, the absence of any corroboration

of the alleged crime (which was not described with any degree of specificity

in the first instance), we agree that the police lacked reasonable suspicion to

stop Appellee.

      The Commonwealth believes that a contrary result is compelled by

relevant case law.     However, we conclude that the cases cited by the

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Commonwealth are distinguishable on both the facts and procedural

postures of those cases.    For instance, in In re D.M., 727 A.2d 556, 558

(Pa. 1999), a juvenile defendant appealed an adverse ruling by a

suppression court, under the following facts:

     [O]n June 6, 1995, at approximately 8:40 p.m., Officer Walter
     Williams of the Philadelphia Police Department was on routine
     patrol on the west end of 30th Street and Grays Ferry Avenue
     when he received a radio call regarding several black males
     involved in a robbery at 22nd and South Streets. The officer
     responded to the call and immediately proceeded to the location
     of the reported robbery. Approximately one or two minutes after
     receiving the call, a short distance from the crime scene, the
     officer observed appellant and three other black males walking
     north “very quickly” on 22nd Street. They were the only
     individuals in the vicinity. As the officer looked in the direction
     of the four individuals, they immediately changed their direction.
     The officer conducted an investigatory stop of appellant and his
     companions.

Id. at 557.

     Our Supreme Court affirmed the suppression court’s holding that the

police possessed reasonable suspicion to stop the juvenile defendant, D.M.

Notably, while the physical description provided in D.M. appears even more

general than in the instant case, it was buttressed by the fact that multiple

black males were observed committing the crime, and D.M. was found in the

presence of multiple other black males near the crime scene.        However,

D.M. is also distinguishable, as is relevant to the instant case, because D.M.

and his cohorts were observed engaging in evasive behavior, walking “very

quickly” away from the crime scene, and changing direction when they saw




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the police, thereby corroborating the suspicion that they had recently been

engaged in criminal activity.

      The Commonwealth further argues that Appellee’s failure to engage in

suspicious or unreasonable conduct does not “vitiate the reasonableness” of

Officer Smith’s actions, citing Commonwealth v. Prengle, 437 A.2d 992

(Pa. Super. 1981). Commonwealth’s Brief, at 12. In that case, an officer

received flash information that a burglary had just been committed at a tire

company, and that the suspect would be driving a truck loaded with tires

and bearing the logo of the tire company. Upon receiving that information,

the officer in Prengle drove to an exit ramp serving the area near the tire

company’s location, where he observed a truck, loaded with tires, and

bearing the logo of the tire company.        The officer stopped the truck,

removed the driver, and patted him down for weapons before ultimately

arresting him. The Prengle Court affirmed the denial of Prengle’s motion to

suppress. Prengle argued that the stop was conducted without reasonable

suspicion, in part because he had not engaged in unusual conduct prior to

the pat-down. The Court rejected that claim, reasoning:

             The police officer's failure to observe personally appellant
      engaging in “unusual conduct” does not vitiate the
      reasonableness of the officer's action in the instant case. The
      facts known to the officer prior to the frisk in question show that
      a crime of violence was reported, and, within minutes of the
      reported crime, the officer saw a moving vehicle matching the
      exact description of the stolen truck in the vicinity of the crime.
      Under these circumstances, we will not ignore the probable
      existence of danger and require that the officer first ask for
      identification prior to conducting a protective frisk.


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Prengle, 437 A.2d at 994–95.

       Unlike what occurred in Prengle, the observations made just prior to

detaining Appellee did nothing to corroborate the allegation of criminal

conduct in this case.         Appellee met a very general description 3 which

included a direction of travel.          By contrast, in Prengle, the identifying

information leading to the stop itself corroborated the alleged criminal

conduct, as Prengle was stopped while driving a vehicle which bore the logo

of the burglarized business, and which contained the stolen cargo. Thus, not

only was the vehicle description in Prengle significantly more precise than

the generalized description given in this instant case,4 it also corroborated

the alleged criminal conduct by its very nature.         Here, however, Appellee

was not seen carrying any stolen items or instruments of crime, nor was he

observed behaving suspiciously so as to suggest a guilty mind.             Thus,

Prengle does not support reversing the suppression order in this case.

       The Commonwealth also relies on In the Interest of S.D., 633 A.2d
172 (Pa. Super. 1993), another case affirming the denial of a suppression

motion. In S.D., police received a report that two black males were armed

____________________________________________


3
  Here, we afford the Commonwealth some leeway, as the Victim reported
that the perpetrator wore a beard, and there is no evidence of record that
Appellee matched that aspect of the provided description, despite it being a
rather unmistakable characteristic.
4
  As noted above, the Prengle Court stated that the stopped vehicle was an
“exact” match to the description given in the flash police bulletin.



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and in possession of illegal narcotics at a specific location (which was also an

area known for drug trafficking).              Soon thereafter, police found the

defendant and his cohort, both black males, standing exactly where

reported, at 5:25 a.m.        In affirming the denial of suppression, this Court

emphasized that S.D. and his cohort were found exactly where described by

a known informant, in a high drug crime area, and at an unusual time.

Here, Appellee’s location was not nearly as specific (he was merely travelling

in the same direction as the report indicated), it was not an unusual hour

(approximately 11:20 p.m.), and there is there is nothing in the record

indicating that he was found in an isolated5 or high crime area. Moreover,

there is no indication that Appellee was the only person on the street that

evening.    When asked if there were any other people on the street when

they stopped Appellee, Officer Smith stated “I can’t recall.” N.T., 5/8/15, at

19. Thus, S.D. is also inapposite.

       Finally, the Commonwealth relies on Commonwealth v. Cruz, 21
A.3d 1247 (Pa. Super. 2011), another case where this Court affirmed the

denial of a suppression motion.           In Cruz, “Philadelphia police received a

radio dispatch to be on the lookout for a ‘Hispanic male driving an older

model green, small vehicle.’” Id. at 1248. The report came from a known

victim, who had a gun pulled on her by the suspect. Within one minute of

____________________________________________


5
 Indeed, the area surrounding the address of the reported theft appears to
be a densely populated, urban area in North Philadelphia.



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the flash bulletin, an officer observed a vehicle matching that provided by

the radio dispatch, stopped that vehicle, and the driver was soon thereafter

identified by the crime victim at the scene. While the Cruz case is not as

easily distinguished, we note that the vehicle description in that case was

more specific and/or unique than the description of Appellee in this case (the

officer in Cruz noted that Cruz’s vehicle immediately stood out), and

Appellee was stopped in this case a minimum of seven minutes after the

initial report, whereas the police stopped Cruz within a minute of receiving

the flash information.

      Procedurally, too, these cases are distinguishable because they

affirmed the denial of suppression in a lower court, whereas here, the

suppression court granted suppression. The applicable legal standard is the

same: a court examines the totality of the circumstances to determine if

there is reasonable suspicion that criminal activity is afoot. However, it is

contrary to the applicable legal standard to check off particular facts in

establishing reasonable suspicion, as if such facts or circumstances should

be afforded equal weight in all circumstances and in all cases.     Naturally,

individual courts will afford different weight to circumstances in any given

case as compared to another arising out of different conditions, above and

beyond the credibility assessments of the witnesses which will also vary

case-by-case.   Thus, we must recognize the discretion of the suppression

court to afford certain facts different weights in the myriad of different

circumstances that occur in the real world because, otherwise, we would

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effectively be replacing a totality of the circumstances test with a bright-line

rule.   Moreover, an appeal from an order granting suppression places the

burden of persuasion on the Commonwealth, whereas in the many cases

cited by the Commonwealth, the burden of persuasion on appeal was on the

defendant.

        Given these considerations and the specific circumstances of this case,

we are simply not convinced that the suppression court erred in granting

Appellee’s suppression motion, as we ascertain no clear legal error in that

decision based on the relevant case law. Appellee only matched a general

description provided by the Victim. While Appellee was observed moving in

the general direction identified in the flash report, he was not located in an

isolated or high crime area. There was nothing otherwise unusual about him

walking in that area at that time of day, and nothing in the record

demonstrates that Appellee was alone on the street when found at least

seven minutes after the initial report.6 Moreover, nothing about Appellee’s
____________________________________________


6
  See N.T., 5/18/15, at 18 (indicating that the initial report was dispatched
at 11:12 p.m., and that Appellee was stopped at 11:19 p.m.). Appellant
was located approximately one city block from the scene of the alleged
crime. However, it is common sense that, even moving at a leisurely pace,
the average person can cover far more ground in seven minutes than a
single city block. And this assumes, of course, that the victim called the
police while the crime was still in progress, and that the flash information
was instantaneously dispatched when received from the victim. However, it
is far more reasonable to assume that there was at least some delay
between the observation of the alleged criminal conduct by the Victim and
the time when dispatch was able to provide the initial flash report. Thus,
seven minutes is the bare minimum time that the perpetrator had to travel
(Footnote Continued Next Page)


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behavior indicated a guilty mind. He was not moving quickly or engaged in

outright flight, and he was fully cooperative with the police. Consequently,

in these circumstances, we conclude that the Commonwealth has not met its

burden to demonstrate a clear misapplication of the applicable law. Thus,

we affirm the lower court’s order granting Appellee’s suppression motion.

      Order affirmed.

      Judge Panella joins this memorandum.

      President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




                       _______________________
(Footnote Continued)

away from the scene of the crime. Consequently, Appellee’s proximity to
the scene of the crime when stopped by Officer Smith is not particularly
suspicious, especially given the time of day and the fact that this was an
urban environment. In Cruz, by contrast, the time elapsed between the
initial bulletin and the police’s observation of Cruz’s vehicle was only one
minute.



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