Com. v. Burney, P.

J-A05030-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PHILLIP BURNEY : : Appellant : No. 1142 EDA 2025 Appeal from the Judgment of Sentence Entered April 3, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005420-2024 BEFORE: KUNSELMAN, J., NICHOLS, J., and SULLIVAN, J. MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 3, 2026 Appellant Phillip Burney appeals from the judgment of sentence imposed by the trial court following his conviction of one count each of firearms not to be carried without a license and carrying firearms in public in Philadelphia. 1 Appellant contends that the trial court erred by denying his suppression motion because the arresting officer lacked reasonable suspicion to believe Appellant was engaged in illegal activity when he was stopped and frisked, and that there was no justification for the search. We affirm. The trial court summarized the relevant facts as follows: On July 19, 2024, [Appellant] was arrested and charged with violating §§ 6106 and 6108 of the Uniform Firearms Act (VUFA). ____________________________________________ 1 18 Pa.C.S. §§ 6106(a)(1) and 6108, respectively. The Commonwealth also charged Appellant with one count of persons not to possess firearms, but the Commonwealth nolle prossed this charge prior to Appellant’s trial. J-A05030-26 Appellant subsequently filed a motion to suppress physical evidence. On December 16, 2024, following a brief suppression hearing, the [suppression] court denied Appellant’s motion. The [trial] court then presided over a stipulated bench trial, during which all parties agreed that certain testimonial evidence and exhibits would be entered into the record. After considering this stipulated evidence, the court found Appellant guilty as charged. Appellant thereafter filed a "Motion for Reconsideration from Denial of Motion to Suppress Evidence." The [trial] court denied Appellant’s motion on April 1, 2025. On April 3, 2025, the court sentenced Appellant to eleven-and-a-half (11 ½) to twenty-three (23) months in jail on the § 6106 bill and four (4) years of probation on the § [6108] bill. This timely appeal followed. During Appellant’s suppression hearing, the Commonwealth presented the testimony of Philadelphia Police Officer Dustin Kology, body-cam footage, and several exhibits. The relevant facts are as follows: On July 18, 2024, Officer Kology and his partner, Officer Stasik, were on routine patrol in Philadelphia's 39111 Police District. At about 5:00 p.m., the officers drove past Appellant, who was leaning against a car on the 2000 block of Mayfield Street. Officer Kology testified that Appellant’s T-shirt was raised a few inches “as if something was underneath it.” At that point, the officers circled the block. When they turned back onto Mayfield Street, they observed Appellant with a small child, exiting the car that Appellant was previously leaning against. According to Officer Kology, Appellant pushed something down into his waistband as he walked the child onto the pavement. As the officers drove closer to Appellant, Officer Kology saw an L- shaped bulge under Appellant’s shirt. He believed that the object was a firearm based upon his experience and training. Officers Kology and Stasik exited their patrol car and approached Appellant. They spoke in a normal tone and did not demand that Appellant stop. Neither officer drew their weapon, nor were the patrol car’s lights and sirens activated. When Officer Kology asked Appellant if he had a weapon, Appellant mumbled something incoherently and started to turn away. Officer Kology then frisked Appellant for his own safety and immediately found a loaded gun inside Appellant's waistband. When Officer Kology again asked Appellant if he had a permit to carry, Appellant admitted that he did not. Trial Ct. Op, 6/10/25, at 1-2 (citations omitted). On appeal, Appellant raises the following claim: -2- J-A05030-26 Did not the trial court err in denying Appellant’s motion to suppress physical evidence under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution where the arresting officer lacked reasonable suspicion to believe that Appellant was engaged in criminal conduct where he was physically stopped and subjected to an investigatory detention or arrest merely based upon the observation of a bulge that the officer believed was a firearm, all in contradiction to the holdings of Terry v. Ohio, 392 U.S. 1, 30 (1968), and Commonwealth v. Hicks, 208 A.3d 916, 937 (Pa. 2019)? Appellant’s Brief at 2. 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 court’s legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, 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 court[] below are subject to our plenary review. Commonwealth v. McLean, 302 A.3d 211, 215 (Pa. Super. 2023) (citing Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)) (some formatting altered). It is well settled that “Article I, [Section] 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution both protect the people from unreasonable searches and seizures. Jurisprudence -3- J-A05030-26 arising under both charters has led to the development of three categories of interactions between citizens and police.” Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted). 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 to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause. Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citations omitted). [T]o establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. The question of whether reasonable suspicion existed at the time the officer conducted the stop must be answered by examining the totality of the circumstances to determine whether the officer who initiated the stop had a particularized and objective basis for suspecting the individual stopped. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of the stop warrant a man of reasonable caution in the belief that the action taken was appropriate. Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa. Super. 2009) (citations omitted and some formatting altered). It is well settled that when determining whether a seizure has taken place, a court must apply an objective test: -4- J-A05030-26 [T]o guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave. In evaluating the totality of the circumstances, our focus is whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained. In making this determination, no single factor dictates the ultimate conclusion as to whether a seizure has occurred. Commonwealth v. Green, 298 A.3d 1158, 1163 (Pa. Super. 2023) (citations omitted and some formatting altered). Our Supreme Court has clarified that the mere possession of a concealed firearm in public is insufficient to support reasonable suspicion that criminal activity is afoot, “[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner.” Commonwealth v. Hicks, 208 A.3d 916, 937 (Pa. 2019). However, the Hicks Court explained: A police officer is entitled to view individual’s conduct in light of the “probabilities” that criminal activity may be afoot and indisputably may draw “certain common sense conclusions about human behavior.” [United States v. Cortez, 449 U.S. 411, 418 (1981)]. Relevant contextual considerations may include factors such as a suspect’s presence in a high crime area. See, e.g., Adams v. Williams 407 U.S. 143, 147-148 (1972), but see [Illinois v. Wardlow, 528 U.S. 119, 124 (2000)] (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, a particularized suspicion that the person is committing a crime.”) -5- J-A05030-26 * * * A police officer is trained to assess people and situations for danger. An officer responding to a dispatch . . . is capable of responding in a manner not amounting to a seizure by observing the suspect and the circumstances, by determining whether anyone appears to be in danger or whether a crime appears to be occurring, and by interviewing witnesses about any crimes that may have occurred before the officer’s arrival. See [Commonwealth v. Jackson, 698 A.2d 571, 575 (Pa. 1997)] (reasoning that, where the available information does not give rise to reasonable suspicion, “the police must investigate further by means not constituting a search and seizure.”). Such activities preserve peace, law, and order, and do so without depriving anyone of his freedom unless there is cause to do so. Id. at 939, 946 (formatting altered). This Court, in an unpublished memorandum, Commonwealth v. Lindsay, 2908 EDA 2023, 2024 WL 4318548 at *3, *5 (Pa. Super. filed Sept. 27, 2024) (unpublished mem.),2 reversed a trial court’s order granting suppression in a case where a police officer sitting in a marked patrol car observed the defendant walking with a small child. Lindsay, 2024 WL 4318548 at *3, *5. The officer testified he could see the handle of a black Glock protruding from the defendant’s right pants pocket. Id. at *1. The officer opened his car door, approached the defendant with a body-worn camera, and asked the defendant two times, “do you have a permit to carry?” Id. at *1, *5. The defendant continued to walk away, and responded, ____________________________________________ 2 Unpublished memoranda filed by this Court after May 1, 2019 may be cited for their persuasive value. Pa.R.A.P. 126(b). -6- J-A05030-26 “[a]hhh, s**t.” Id. at *1, *5. The officer then asked a third time if the defendant had a permit, to which he responded, “No, I don’t, but it’s legal.” Id. at *1. The Lindsay Court concluded that the defendant’s response, “ahh s**t” gave the police officer reasonable suspicion to detain appellee in order to determine whether he possessed the gun legally—which turned into probable cause to arrest when appellee admitted he did not have a permit to carry a gun. See id at *5; see also Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (reasonable suspicion for Terry3 stop existed in part because the defendant sat down and patted his waistband in a manner that reasonably suggested a weapon was concealed in his waistband); Commonwealth v. Keys, 2446 EDA 2022, 2023 WL 4174158, *4 (Pa. Super. filed June 26, 2023) (unpublished mem.) (defendant’s adjustment of concealed object in waistband when police arrived, and turning away from officers, allowed officer to reasonably infer that these were not actions of someone licensed to carry a firearm, but rather actions of someone unlicensed to carry one.) Recently, this Court in Commonwealth v. Toliver, 355 A.3d 920 (Pa. Super. 2026), reversed a trial court’s order granting suppression on the basis that the defendant’s lie to a police officer regarding the presence of a firearm in his vehicle was sufficient to establish reasonable suspicion to conduct an investigative detention, prior to the plain view discovery of the firearm ____________________________________________ 3 See Terry v. Ohio, 392 U.S. 1 (1968). -7- J-A05030-26 protruding from his pocket, and the furtive movements described by the investigating police officer. See Toliver, 335 A.3d at 945. Accordingly, reasonable suspicion supported the investigatory detention of the defendant, as well as the officers’ question to the defendant about his firearms licensing status during the detention. See id. Therefore, the removal of the firearm from the defendant’s pocket following the frisk was lawful. See id. The Toliver Court instructs us that: Reasonable suspicion does not require that the factors on which an officer may rely be unquestionably criminal to support further investigation. See Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (“the totality of the circumstances test [for determining reasonable suspicion] does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct”) (citation omitted). “Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Id. (citation omitted). The totality of the circumstances test for determining reasonable suspicion “is what it purports to be—it requires a suspicion of criminal conduct that is reasonable based upon the facts of the matter,” and potential innocent explanations for a defendant’s conduct may not negate a police officer's suspicion of criminal activity. Id. (citation omitted; emphasis in original). Toliver, 355 A.3d at 936-37. Here, the trial court made the following findings of fact: The [trial] court found that Officer Kology testified credibly at Appellant’s suppression hearing, and the body-worn camera footage of his interaction with Appellant corroborated his account. When the police initially drove past Appellant, he wasn’t doing anything illegal. However, because of the way Appellant’s shirt was draped over his waist, the police thought he may have been concealing something in his waistband. At this point, there was no interaction whatsoever between the police and Appellant. After the officers circled the block and drew closer to Appellant, they -8- J-A05030-26 observed an L-shaped bulge under Appellant’s shirt consistent with a gun. The officers exited their patrol car and walked towards Appellant. They spoke in a normal tone and did not demand that Appellant stop. Moreover, their weapons were not drawn, and the lights and sirens of their vehicle were not activated. Officer Kology simply asked Appellant if he had a weapon. Appellant mumbled something incoherently and started to turn his body away. Officer Kology noted that he could not see Appellant’s hands as he turned. It was at this point that the officers frisked Appellant for their own safety and immediately discovered a loaded gun in his waistband. Based upon the totality of circumstances (Officer Kology’s considerable experience, his observance of an L-shaped bulge that resembled the outline of a gun, and Appellant’s “evasive” conduct), what started out as a mere encounter quickly ripened into reasonable suspicion to engage in a safety frisk/investigat[ive] detention. Then, when Appellant admitted he did not have a permit to carry a concealed firearm, it gave the officers probable cause to justify Appellant’s arrest. Accordingly, Appellant’s suppression claim must fail. Trial Ct. Op., 6/10/25, at 4-5. In Officer Kology’s credited testimony, he stated that he observed an L- shaped bulge he believed to be a gun under Appellant’s shirt and that Appellant then pushed his hand down his waistband. See N.T. Suppression Hr’g, 12/16/24, at 10. We conclude that these observations reasonably warranted further investigation by Officer Kology by means not constituting a search and seizure to determine if there was reasonable suspicion that Appellant was carrying a gun illegally. See Hicks, 208 A.3d at 939. The officer’s determination of reasonable suspicion does not require that the factors on which the officer relies be unquestionably criminal to support further investigation; rather, such factors may be a combination of innocent -9- J-A05030-26 facts that, taken together, warrant further investigation based on a totality of the circumstances. See Toliver, 355 A.3d at 936-37. Here, as in Lindsay, Officer Kology asked Appellant if he had a permit to carry. See N.T. Suppression Hr’g, 12/16/24, at 10; Lindsay, 2024 WL 4318548 at *1. Appellant mumbled something incoherently and started to turn his body away. See N.T. Suppression Hr’g, 12/16/24, at 10. It was at this point that the officer frisked Appellant for his own safety and immediately discovered a loaded gun in Appellant’s waistband. See id. In addition to the observed L-shaped bulge under Appellant’s shirt that he pushed down, Appellant’s evasive conduct in mumbling responses and turning away from the officer supported the reasonable suspicion that Appellant was armed illegally and justified the frisk for officer safety. See Lindsay, 2024 WL 4318548 at *5. When Officer Kology again inquired if Appellant had a permit to carry, Appellant admitted that he did not. See N.T. Suppression Hr’g, 12/16/24, at 10. Probable cause to arrest was established when Officer Kology recovered the gun from Appellant’s person. See id.; Lindsay, 2024 WL 4318548 at *5. On this record, based upon the totality of the circumstances, we conclude that Officer Kology had reasonable suspicion to frisk Appellant, which turned into probable cause to arrest him upon recovering the firearm from Appellant’s person. For these reasons, we affirm Appellant’s judgment of - 10 - J-A05030-26 sentence and the trial court’s suppression order denying suppression of evidence. Judgment of sentence affirmed. Jurisdiction relinquished. Judge Kunselman joins the memorandum. Judge Sullivan concurs in the result. Date: 11/3/2026 - 11 -