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Commonwealth v. Morrison

Superior Court of Pennsylvania

June 21, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
TYSHIR MORRISON Appellant

         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. [*]

          OPINION

          FITZGERALD, J.

         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, [1] firearms not to be carried without a license, [2] and 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 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.[4] Id. 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.

         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.
* * *
Q. . . . And you gave the information to prepare the PARS, ...

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