J-S74022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MICHAEL SHIELDS

Appellant No. 1503 EDA 2017

Appeal from the Judgment of Sentence Entered May 1, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0012419-2015

BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2019

Appellant Michael Shields appeals from the May 1, 2017 judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County (“trial 

court”), following his stipulated bench conviction for firearms not to be carried 

without a license and carrying firearms in public in Philadelphia.1 Upon review, 

we affirm. 

The facts and procedural history of this case are undisputed. As 

recounted by the trial court:

Appellant was arrested on November 20, 2015 following an 

encounter with uniformed police officers who were responding to 

a radio call for gunshots in the area. Prior to trial, Appellant 

moved for suppression of the physical evidence seized at the time 

of his arrest, namely the gun, which was denied by th[e] court. 

Following a stipulated trial incorporating all testimony heard as 

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1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively. 
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part of the suppression motion, th[e] court found Appellant guilty 

of violations of the Uniform Firearms Act [(“VUFA”)].

The Commonwealth’s case consisted of the testimony of one 

of the responding police officers, Officer Mirabella, as well as four 

(4) exhibits moved into evidence, including a map of the area 

where the arrest took place, the property receipt and ballistic 

report for the gun and certificate of non-licensure. Officer 

Mirabella testified as follows. He and his partner (McCabe) were 

in uniform and in a marked police vehicle when they received a 

radio call at approximately 12:35 am for gunshots on the 2400 

block of Park. On cross-examination, he acknowledged that the 

radio call may have indicated that the shots were coming from 

inside 2315 North Park. The radio call was vague and did not 

provide a description nor information on the shooter. As a result 

of the call, he began to survey the area and within five (5) minutes 

he came into contact with Appellant near the 2400 block of North 

13th which was about one block from where the shots were 

reported to be fired.

Appellant and another male (defense witness, Sherrod 

West) were standing near a silver Chevy Impala. The vehicle was 

parked on the left side of the street and was therefore nearer to 

Officer Mirabella who was driving the patrol [vehicle]. Mr. West 

was standing in the street directly behind the car at the trunk area 

and Appellant was standing near the pavement at the driver’s side 

rear quarter panel. The officer remained in his patrol [vehicle] 

and asked the men if they had heard gunshots. Mr. West 

responded ‘no’ but Appellant did not respond and after looking at 

the officers he immediately looked away. Officer Mirabella stated 

that Mr. West was acting normally and was having a casual 

conversation with the officers. At no time did either officer ask 

the men to stop nor come to the patrol [vehicle]. Officer Mirabella 

focused his attention on Appellant because Appellant had quickly 

looked away and would not make eye contact with the officers.

The officer testified that he could only see Appellant from 

the midsection up but while observing him, the officer saw 

Appellant motion (his hand) toward his waistband area and also 

moved to block his body from behind the car, and bladed his body 

[a]way from the officers. Further, the officer no longer was able 

to see Appellant’s hand that had [gone] down towards his 

waistband and over his jacket nor that side of Appellant’s waist 

once Appellant bladed his body behind the car. Although the 
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officer could not see a firearm, based upon his experience he 

believed Appellant was in possession of a firearm. At the time of 

this arrest, Officer Mirabella had been a police officer for three (3) 

years and had been assigned during that time to the 22nd district 

which he described as one of the worse crime areas in the city 

with a lot of shootings and that he had personally recovered 

several firearms in that district.

Officer Mirabella exited his patrol [vehicle] and approached 

Appellant and again asked Appellant if he was okay and Appellant 

did not respond and looked like he was frozen and could [not] 

speak and then stumbled over his words. He appeared extremely 

nervous and had sweat across his forehead despite it being the 

month of [November]. Officer Mirabella then told Appellant to put 

his hands on the car and performed a Terry[2]frisk and found a 

firearm in the front right side of Appellant’s waistband, which was 

where the officer saw Appellant reach his hand earlier. The 

officer’s thumb had hit the firearm during the frisk and the officer 

immediately knew it was a firearm. Whereupon Appellant was 

placed under arrest for VUFA. 

On cross-examination, the officer acknowledged that 

neither man attempted to flee and that some people who have not 

committed a crime appear nervous and sweat in the presence of 

police officers. He stated that based upon the totality of the 

circumstances that he was 70 percent sure Appellant had a gun. 

The Commonwealth then rested for purposes of the suppression 

motion.

Appellant called Sherrod West to testify and he did so as 

follows. He and Appellant were friends and had graduated school 

together in 2014 and did some film and photo work projects 

together, including that night. He had misplaced his computer 

and he and Appellant went outside to his car to try and find it 

when the marked police [vehicle] came upon them. The officers 

asked them if everything was okay and he responded yes but that 

he was the only one talking and that Appellant was “quiet the 

whole time.” He was speaking with Officer Mirabella who had 

asked if he had thoroughly checked the whole car and then asked 

if they had anything in the car, to which he responded no. He 

testified that Officer Mirabella asked him [if] Appellant was okay 

and he responded [] yes. Officer Mirabella then jumped out of the 

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2 Terry v. Ohio, 392 U.S. 1 (1968).
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patrol [vehicle] and started talking to Appellant and asked him 

“what do you have on you?” but Appellant did not say anything in 

response. The officer then felt Appellant and found a gun.

On cross-examination, Mr. West agreed that officers did not 

tell him nor Appellant to stop and had just engaged them in a 

casual conversation and while doing so he was looking at the 

officers but that only he was talking with the officers not Appellant. 

He also agreed that Appellant was standing off to the side and that 

the trunk of the car was in between him and Appellant. 

Appellant then was called for demonstrative purposes only 

and put on the jacket that he was wearing when he was arrested, 

indicating that it was being worn open that night and th[e] court 

placed onto the record that the jacket extended about four (4) 

inches below the waist of Appellant. Appellant then rested for 

purposes of the motion, with the admission of the police radio call 

tape. Following argument th[e] court denied the motion to 

suppress the firearm. The case then proceeded to trial with both 

the Commonwealth and Appellant agreeing to a stipulated trial 

with the admission of all evidence received by the court for 

purposes of the suppression motion, together with a stipulation as 

to Appellant’s good character.

Th[e trial] court found Appellant guilty of both firearms 

charges and following the submission of a pre-sentencing report, 

sentenced Appellant within the guidelines.[3] Appellant timely filed 

his notice of appeal of th[e] court’s decision to the Pennsylvania 

Superior Court. On May 15, 2017 th[e] court issued a Pa.R.A.P. 

1925(b) order directing Appellant to file his statement of errors 

complained of on appeal. However, Appellant’s statement was not 

filed until November 3, 2017, following an order by the Superior 

Court directing Appellant to do so within twenty-one (21) days. 

[In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.]

Trial Court Opinion, 12/6/17, 1-5 (unnecessary capitalizations and record 

citations omitted). 

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3 Prior to sentencing, Appellant moved for extraordinary relief, renewing his 

motion to suppress the firearm. The trial court denied the motion on May 1,

2017, on the day of sentencing. 
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On appeal, Appellant argues only that the trial court erred in denying 

his motion to suppress the gun. Appellant’s Brief at 6, 16. 

In reviewing appeals from an order denying suppression, our standard 

of review is limited to determining 

whether [the trial court’s] factual findings are supported by the 

record and whether [its] legal conclusions drawn from those facts 

are correct. When reviewing the rulings of a [trial] court, the 

appellate court considers only the evidence of the prosecution and 

so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a whole. 

When the record supports the findings of the [trial] court, we are 

bound by those facts and may reverse only if the legal conclusions 

drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our 

scope of review is limited to the evidence presented at the suppression 

hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). 

Article I, Section 8 of the Pennsylvania Constitution and the Fourth 

Amendment to the United States Constitution protect the people from 

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298, 

302 (Pa. 2014) (citation omitted). The Lyles Court explained:

Jurisprudence arising under both charters has led to the 

development of three categories of interactions between citizens 

and police. The first, a “mere encounter,” does not require any 

level of suspicion or carry any official compulsion to stop and 

respond. The second, an “investigatory detention,” permits the 

temporary detention of an individual if supported by reasonable 

suspicion. The third is an arrest or custodial detention, which 

must be supported by probable cause.

In evaluating the level of interaction, courts conduct an 

objective examination of the totality of the surrounding 

circumstances. . . . The totality-of-the-circumstances test is 
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ultimately centered on whether the suspect has in some way been 

restrained by physical force or show of coercive authority. Under 

this test, no single factor controls the ultimate conclusion as to 

whether a seizure occurred—to guide the inquiry, the United 

States Supreme Court and [our Supreme] Court have employed 

an objective test entailing a determination of whether a 

reasonable person would have felt free to leave or otherwise 

terminate the encounter. What constitutes a restraint on liberty 

prompting a person to conclude that he is not free to leave will 

vary, not only with the particular police conduct at issue, but also 

with the setting in which the conduct occurs.

[Our Supreme] Court and the United States Supreme Court 

have repeatedly held a seizure does not occur where officers 

merely approach a person in public and question the individual or 

request to see identification. Officers may request identification 

or question an individual so long as the officers do not convey a 

message that compliance with their requests is required. 

Although police may request a person’s identification, such 

individual still maintains the right to ignore the police and go about 

his business.

Id. at 302-03 (internal citations and quotation marks omitted). “We adhere 

to the view that a person is ‘seized’ only when, by means of physical force or 

a show of authority, his freedom of movement is restrained. Only when such 

restraint is imposed is there any foundation whatever for invoking 

constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544, 

553 (1980). 

Here, it is undisputed that Officer Mirabella’s pat-down of Appellant 

amounted to an investigative detention necessitating reasonable suspicion. It 

is settled that reasonable suspicion necessary for investigative detentions 

is a less demanding standard than probable cause not only in the 

sense that reasonable suspicion can be established with 

information that is different in quantity or content than that 

required to establish probable cause, but also in the sense that 
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reasonable suspicion can arise from information that is less 

reliable than that required to show probable cause.

Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations 

omitted). In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011),

appeal denied, 25 A.3d 328 (Pa. 2011), we explained that Pennsylvania has 

adopted the holding of Terry:

[T]he Terry stop and frisk[] permits a police officer to briefly 

detain a citizen for investigatory purposes if the officer observes 

unusual conduct which leads him to reasonably conclude, in light 

of his experience, that criminal activity may be afoot. Terry

further held that when an officer is justified in believing that the 

individual whose suspicious behavior he is investigating at close 

range is armed and presently dangerous to the officer or to others

the officer may conduct a pat down search to determine whether 

the person is in fact carrying a weapon. The purpose of this 

limited search is not to discover evidence of crime, but to allow 

the officer to pursue his investigation without fear of violence.

In order to conduct an investigatory stop, the police must have 

reasonable suspicion that criminal activity is afoot. In order to 

determine whether the police had reasonable suspicion, the 

totality of the circumstances—the whole picture—must be 

considered. Based upon that whole picture the detaining officers 

must have a particularized and objective basis for 

suspecting the particular person stopped of criminal 

activity. To conduct a pat down for weapons, a limited search or 

frisk of the suspect, the officer must reasonably believe that his 

safety or the safety of others is threatened.

Simmons, 17 A.3d at 403 (citations, quotation marks, brackets, and some 

paragraph breaks omitted) (emphasis added). In assessing the totality of the 

circumstances, a court must give weight to the inferences that a police officer 

may draw through training and experience. Commonwealth v. Holmes, 

14 A.3d 89, 95 (Pa. 2011); see Commonwealth v. Williams, 980 A.2d 667, 
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672 (Pa. Super. 2009) (citations omitted) (noting that “[r]easonable suspicion 

must be based on specific and articulable facts, and it must be assessed based 

upon the totality of circumstances viewed through the eyes of a trained police 

officer.”), appeal denied, 990 A.2d 730 (Pa. 2010). 

However, “[t]he officer need not be absolutely certain that the individual 

is armed; the issue is whether a reasonably prudent man in the circumstances 

would be warranted in the belief that his safety or the safety of others was in 

danger.” Commonwealth v. Taylor, 771 A.2d 1261, 1268-69 (Pa. 2001). 

In conducting a reasonable suspicion inquiry, a suppression court is required 

to “afford due weight to the specific, reasonable inferences drawn from the 

facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996 

A.2d 473, 477 (Pa. 2010). If weapons are found because of the pat-down 

search, the police officer may seize them. Commonwealth v. Thompson, 

939 A.2d 371, 376 (Pa. Super. 2007), appeal denied, 956 A.2d 434 (Pa. 

2008). Moreover, officers may seize nonthreatening contraband “if it is 

discovered in compliance with the plain feel doctrine[.]”4 Id.

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4 Appellant here does not challenge the applicability of the plain feel doctrine, 

pursuant to which:

a police officer may seize non-threatening contraband detected 

through the officer’s sense of touch during a Terry frisk if the 

officer is lawfully in a position to detect the presence of 

contraband, the incriminating nature of the contraband is 

immediately apparent from its tactile impression and the officer 

has a lawful right of access to the object. 

Commonwealth v. Pakacki, 901 A.2dd 983 (Pa. 2006). 
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Instantly, based on the totality of the circumstances of this case, it is 

beyond peradventure that Officer Mirabella had reasonable suspicion to 

believe that Appellant might be armed and dangerous. As aptly explained by 

the trial court:

[Officer Mirabella] testified that during the initial encounter with 

Appellant and his friend, Appellant did not answer his questions 

nor make eye contact with the officers. Further, while speaking 

with Appellant’s friend, [Officer Mirabella] observed Appellant 

reach his hand down into his waistband area and then blade his 

body behind the [parked car] so that the officer was no longer 

able to see either Appellant’s hand or his waistband area where 

Appellant had been reaching. The officer further observed 

Appellant sweating on his forehead despite the fact that it was a 

late evening during the month of [November]. Finally, when the 

officer exited his patrol [vehicle] and went to where Appellant was 

standing, Appellant again did not respond to the officer’s 

questions, and then stumbled over his words and appeared 

nervous. Given the totality of the circumstances testified to by 

Officer Mirabella, including that this was a high-crime area, the 

late hour (12:30 am), the radio call of shots fired and his 

observations of Appellant (lack of response to officer’s routine 

questions, lack of eye contact, acting nervous, sweating, reaching 

his hand down into his waistband area and blading the waistband 

area of his body behind the vehicle and out of the view of the 

officers), the officer was able to point to specific and articulable 

facts for this trial court indicating reasonable suspicion that 

Appellant was armed and dangerous. 

Trial Court Opinion, 12/6/17, at 7. Accordingly, the trial court did not err in 

denying Appellant’s motion to suppress the physical evidence (gun) recovered 

from Appellant’s person by Officer Mirabella because of the pat-down. 

Finally, insofar as Appellant relies on Commonwealth v. Moyer, 954 

A.2d 659 (Pa. Super. 2008) (en banc), appeal denied, 966 A.2d 571 (Pa. 

2009), Commonwealth v. Preacher, 827 A.2d 1235 (Pa. Super. 2003), 
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Commonwealth v. Gray, 896 A.2d 601 (Pa. Super. 2006), and 

Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010), appeal 

denied, 13 A.3d 474 (Pa. 2010), to challenge the trial court’s denial of his 

suppression motion, such reliance is misplaced because the instant case is 

distinguishable. 

In Moyer, the Commonwealth argued that the investigative detention 

of the defendant was supported by reasonable suspicion because there “was 

a lot of movement between the driver and the passenger,” all of which focused 

down toward the floor boards and toward the passenger side of the vehicle, 

and the defendant was nervous. Moyer, 954 A.2d at 669. In affirming the 

trial court’s grant of the defendant’s suppression motion, we disagreed with 

the Commonwealth’s contention. In so doing, we found that “[f]urtive 

movements and nervousness, standing alone, do not support the existence of 

reasonable suspicion.” Id. at 670. Here, Appellant’s furtive movements were 

more pronounced because he reached for his waistband, bladed his body from 

Officer Mirabella’s view and otherwise sought to conceal his body behind the 

parked car. Unlike in Moyer, Officer Mirabella also specifically articulated the 

reason for Appellant’s nervousness. As noted earlier, Officer Mirabella testified 

that Appellant did not respond to his questions and, after looking at the 

officers, Appellant immediately looked away. Appellant failed to make any 

eye contact and did not respond to the officer’s questions. Additionally, Officer 

Mirabella described Appellant as sweating on a cold November night. 
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Similarly, the instant case is distinguishable from Preacher, Gray, and 

Cooper. In Preacher, we concluded that the officer “did not articulate any 

specific facts that led him to believe that [the defendant] may have been 

armed and/or dangerous.” Preacher, 827 A.2d at 1240. Rather, the officer 

observed only that the defendant was acting nervously because his “eyes were 

bulging, he was looking back and forth, [and] tossing the money” he had in 

his hands. Id. In Gray, we held that the officer did not have reasonable 

suspicion to pat down the defendant because the officer “had very little basis 

to believe that [the defendant] was armed and dangerous. In fact, but for 

nervousness, police had no basis: the articulated justification for intruding 

into [the defendant’s] privacy was that he seemed to be ‘a little nervous’ and 

slightly sweating.” Gray, 896 A.2d at 606. In Cooper, we concluded, inter 

alia, that the police officer did not have reasonable suspicion to conduct a patdown search at 9:00 a.m. because there was no evidence that the defendant 

was in a “dangerous neighborhood.” Cooper, 994 A.2d at 594. Additionally, 

we noted that the defendant “merely moved toward his pocket and ceased 

immediately upon the officer’s directive.” Id. Here, as mentioned earlier, 

Officer Mirabella, who was responding to a radio call for shots fired, had 

reasonable suspicion to believe that Appellant was armed and dangerous. 

Appellant, standing outside in a high-crime area at 12:30 am, appeared 

nervous, reached toward his waistband, bladed his body away from the 

officers, failed to make eye contact, and seemed non-responsive to the 

officer’s questions.
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In sum, in light of the totality of the circumstances present here, we 

cannot conclude that the trial court erred in denying Appellant’s motion to 

suppress. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/19