J-S30010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DYREL STEELE

                            Appellee                  No. 1080 EDA 2014


                 Appeal from the Order Entered March 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014122-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JULY 14, 2015

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

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

motion of Appellee, Dyrel Steele, to suppress evidence obtained following his

arrest for drug offenses.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

____________________________________________


1
  Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in
its notice of appeal that the suppression order substantially handicapped or
terminated the prosecution. Accordingly, this appeal is properly before us
for review. See Commonwealth v. James, 620 Pa. 465, 69 A.3d 180
(2013) (reiterating Commonwealth has absolute right of appeal from
interlocutory suppression order, when Commonwealth certifies in good faith
that suppression order has terminated or substantially handicapped
prosecution); Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871
(2003) (stating Rule 311(d) applies to pretrial ruling that results in
suppression, preclusion or exclusion of Commonwealth’s evidence).
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       The Commonwealth presented one witness, Scott
       Schweizer, a police officer of sixteen (16) years’
       experience with eight years on the Narcotics Strike Force,
       now working in the 24th District.     He had over 100
       narcotics arrests and extensive narcotics training in the
       care and packaging of drugs.

       Officer Schweizer testified that on August 3, 2012, at 6:45
       p.m., in the area of 700 East Clearfield Street, he and his
       partner, Police Officer Pross, were in full uniform traveling
       in an unmarked police vehicle. When the police vehicle
       stopped at a red light, Officer Schweizer saw [Appellee] in
       the front passenger seat of a parked car with a female
       driver sitting behind the wheel. Through the windshield of
       this parked vehicle, Officer Schweizer saw [Appellee]
       maneuver an unknown object in his hands that “appeared
       to be something the size of a tennis ball or racquetball.”
       However, Officer Schweizer stated he could not actually
       see what was in [Appellee’s] hand. The officer believed he
       and [Appellee] made eye contact and [Appellee] then tried
       to conceal himself and the contents of his hand.

       At this point, the police officers pulled over and
       approached [Appellee’s] vehicle. Police Officer Schweizer
       made contact with [Appellee] and requested [Appellee]
       lower his window.       [Appellee] complied and inquired,
       “What the fuck?      What the fuck?”      Officer Schweizer
       described [Appellee’s] conduct as “fidgety” and “excited”
       indicating he was looking around, leaning forward with his
       hand, nervous, and sweaty. Officer Schweizer testified he
       saw a bulge in [Appellee’s] right pocket that again looked
       like [a] tennis or racquetball, which he believed to be
       narcotics, as well as a black plastic bag on the floor of the
       vehicle.

       The police officer commanded [Appellee] out of the car. A
       pat down was performed and Officer Schweizer felt what
       he believed to be narcotics.       Immediately thereafter,
       Officer Schweizer recovered the black plastic bag from the
       floorboard of the car which also contained narcotics.
       Officer Schweizer further testified that at no point did he
       believe [Appellee] had a weapon.

(Suppression Court Opinion, filed February 4, 2015, at 1-2) (internal

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citations to the record omitted).

        On December 4, 2012, the Commonwealth filed a criminal information

charging Appellee with possession of a controlled substance and possession

of a controlled substance with intent to deliver.       On January 24, 2013,

Appellee filed a suppression motion, asserting Officer Schweizer “stopped

[Appellee], while [Appellee] was lawfully sitting as a passenger in a parked

car.”   (Suppression Motion, filed 1/24/13, at 1).      Appellee argued Officer

Schweizer conducted an illegal seizure and search, “and the ultimate

recovery of the narcotics was done in violation of [Appellee’s] constitutional

rights.”   (Id.)   Appellee concluded the court should suppress all evidence

obtained as result of the result of the illegalities.   The court conducted a

suppression hearing on March 10, 2014. Immediately following the hearing,

the court granted Appellee’s suppression motion.

        The Commonwealth timely filed a notice of appeal on April 9, 2014.

That same day, the Commonwealth filed a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

        The Commonwealth raises one issue for our review:

           WHERE AN EXPERIENCED OFFICER IN AN AREA KNOWN
           FOR DRUG TRAFFICKING APPROACHED [APPELLEE], WHO
           WAS IN THE PASSENGER SEAT OF A PARKED, RUNNING
           CAR, LOOKING AT AN OBJECT IN HIS HAND THAT THE
           OFFICER COULD NOT SEE; [APPELLEE] MADE EYE
           CONTACT WITH THE OFFICER AND THEN SLUMPED DOWN
           IN HIS SEAT AND TRIED TO CONCEAL THE OBJECT IN HIS
           HAND; THE OFFICER SAW A TENNIS BALL SIZED BULGE
           IN [APPELLEE’S] POCKET; [APPELLEE] WAS SWEATING,
           NERVOUS, MOVING AROUND IN HIS SEAT, AND REACHED

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        FORWARD SEVERAL TIMES TOWARDS A BLACK PLASTIC
        BAG ON THE FLOOR; AND [APPELLEE] CURSED AT THE
        OFFICER, DID THE [SUPPRESSION] COURT ERR IN
        HOLDING THAT THE OFFICER LACKED REASONABLE
        SUSPICION TO STOP AND FRISK [APPELLEE] FOR
        WEAPONS?

(Commonwealth’s Brief at 4).

     When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

        [We] consider only the evidence from the defendant’s
        witnesses together with the evidence of the prosecution
        that, when read in the context of the entire record,
        remains uncontradicted.       As long as there is some
        evidence to support them, we are bound by the
        suppression court’s findings of fact. Most importantly, we
        are not at liberty to reject a finding of fact which is based
        on credibility.

        The suppression court’s conclusions of law, however, are
        not binding on an appellate court, whose duty is to
        determine if the suppression court properly applied the law
        to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

     On appeal, the      Commonwealth contends Officer Schweizer, an

experienced narcotics officer, observed Appellee inside a parked vehicle in a

high-crime area. The Commonwealth asserts Appellee slouched in his seat

and attempted to hide from the officer after the two made eye contact. The

Commonwealth claims Appellee appeared nervous, he fidgeted and cursed

while interacting with Officer Schweizer, and Appellee repeatedly reached

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toward the plastic bag on the floor in front of him.               Under these

circumstances, the Commonwealth argues Officer Schweizer possessed

reasonable suspicion that Appellee was engaged in criminal activity.

Further, the Commonwealth submits Appellee’s suspicious behavior justified

the officer’s decision to conduct a pat-down search for weapons.             The

Commonwealth        concludes   the   court   should   have   denied   Appellee’s

suppression motion on these bases. We disagree.

      Contacts between the police and citizenry fall within three general

classifications:

           The first [level of interaction] 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.

Goldsborough, supra at 305 (quoting Commonwealth v. Bryant, 866

A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa. 668, 876 A.2d

392 (2005)).

      “A mere encounter can be any formal or informal interaction between

an officer and a citizen, but will normally be an inquiry by the officer of a

citizen.    The hallmark of this interaction is that it carries no official

compulsion to stop or respond.” Commonwealth v. Jones, 874 A.2d 108,

116 (Pa.Super. 2005) (quoting Commonwealth v. DeHart, 745 A.2d 633,

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636 (Pa.Super. 2000)).

        In contrast, an investigative detention, by implication,
        carries an official compulsion to stop and respond, but the
        detention is temporary, unless it results in the formation of
        probable cause for arrest, and does not possess the
        coercive conditions consistent with a formal arrest.

                                 *    *    *

        An investigative detention, unlike a mere encounter,
        constitutes a seizure of a person and thus activates the
        protections of Article 1, Section 8 of the Pennsylvania
        Constitution. To institute an investigative detention, an
        officer must have at least a reasonable suspicion that
        criminal activity is afoot.

                                 *    *    *

        Reasonable suspicion exists only where the officer is able
        to 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.
        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 intrusion warrant
        a [person] of reasonable caution in the belief that the
        action taken was appropriate.

Jones, supra at 116 (internal citations omitted).

        Also, the totality of the circumstances test does not limit
        our inquiry to an examination of only those facts that
        clearly indicate criminal conduct.         Rather, even a
        combination of innocent facts, when taken together, may
        warrant further investigation by the police officer.

Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.

Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,

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902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).

     “In these matters, our initial inquiry focuses on whether the individual

in question has been legally seized.” Commonwealth v. Coleman, 19 A.3d

1111, 1116 (Pa.Super. 2011).

         To guide the crucial inquiry as to whether…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 circumstances, the focus is
         directed toward 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,
         courts must apply the totality-of-the-circumstances
         approach, with no single factor dictating the ultimate
         conclusion as to whether a seizure has occurred.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012), appeal

denied, 616 Pa. 657, 50 A.3d 124 (2012) (quoting Coleman, supra at

1116).   “If, during the course of a valid investigatory stop, an officer

observes unusual and suspicious conduct on the part of the individual which

leads him to reasonably believe that the suspect may be armed and

dangerous, the officer may conduct a pat-down of the suspect’s outer

garments for weapons.”     Commonwealth v. Preacher, 827 A.2d 1235,

1239 (Pa.Super. 2003).

     Instantly, on August 3, 2012, Officer Schweizer and his partner were

on patrol near 700 East Clearfield Street. The officers were in full uniform,

riding in an unmarked car.   Officer Schweizer characterized the area as a

“residential neighborhood” with “three, four, known drug corners….”     (See

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N.T. Suppression Hearing, 3/10/14, at 7-8.) Officer Schweizer estimated he

had made one hundred arrests for narcotics offenses in the area over a

sixteen-year period.

      At approximately 6:45 p.m., Officer Schweizer first observed Appellee,

who was in the passenger’s seat of a parked vehicle. An unidentified female

was in the driver’s seat. Officer Schweizer described Appellee’s behavior as

follows:

           I was making my observations through my side window,
           which isn’t tinted. Looking into the vehicle that [Appellee]
           was in through the front windshield, I observed [that
           Appellee] appear[ed] to be examining something in his
           hand, looking at it. I could see him maneuver his body to
           [place] that item into his pocket. Again, we were still in
           traffic.

           At this point, I made eye contact with [Appellee], meaning
           we were looking at each other. At that point, [Appellee]
           started to, in my opinion, conceal himself. He started to
           slouch down and maneuver in the passenger’s seat to a
           point where at one time I completely couldn’t see his body
           whatsoever.

(Id. at 9-10). Officer Schweizer elaborated on the object in Appellee’s hand,

explaining, “I couldn’t see fully what was in his hand, but the way his hand

was opened, it appeared…to be something of the size of a tennis ball….”

(Id. at 10).

      Officer Schweizer stated Appellee’s “mannerisms after we made eye

contact” raised his suspicions. (Id. at 16). Specifically, Appellee’s attempt

to conceal himself troubled the officer:

           [Appellee] first leaned…like slouching down.      Like you

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         would go down a sliding board. And then he came back up
         and then fully concealing himself, leaning toward the
         driver’s side where I couldn’t see him anymore.

(Id.) Consequently, Officer Schweizer and his partner exited their patrol car

and approached Appellee’s vehicle.               Officer Schweizer went to the

passenger’s side and his partner stayed on the driver’s side.              Officer

Schweizer asked Appellee to roll down the passenger’s side window. (Id. at

18).

       Officer Schweizer emphasized that Appellee’s act of slouching in his

seat   aroused   the    officer’s   suspicion,    which   prompted   his   further

investigation.   Appellee was effectively seized when the officers stood

directly outside his vehicle and asked him to roll down the window. Under

these circumstances, a reasonable person would not think he was free to

leave the scene.       See Downey, supra.          Therefore, Officer Schweizer’s

interaction with Appellee constituted a “seizure” that required reasonable

suspicion. Id.

       Here, the suppression court correctly determined:

         There is no evidence of a traffic violation, or vehicle stop,
         only Officer Schweizer’s observations of [Appellee’s]
         behavior. Based on Officer Schweizer’s observations, at
         6:45 p.m. in the summer, [Appellee] maneuvered
         something in his hands that looked like a [ball], and then
         upon making eye contact with [the officer], slouched down
         in his seat. This combination of actions [does] not give
         rise to reasonable suspicion that there was criminal activity
         afoot.     Officer Schweizer had no reason to stop
         [Appellee]…and…anything [discovered] after should be
         suppressed as fruit of the poisonous tree.


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(See Suppression Court Opinion at 4.)         We agree and emphasize Officer

Schweizer’s testimony lacked any specific observations to link the object in

Appellee’s hand, or his slouching in his seat, to any type of criminal activity.

Officer Schweizer could not identify the object or even see its color. (See

N.T. Suppression Hearing at 17.) The record supports the court’s decision

that the officer lacked reasonable suspicion under these circumstances. See

Jones, supra.     Accordingly, we affirm the order granting the suppression

motion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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