J-A15004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER EDWARD HOLBEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 920 WDA 2021

Appeal from the Judgment of Sentence Entered July 8, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0004461-2020

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: OCTOBER 18, 2022

Tyler Edward Holben appeals from his July 8, 2021 judgment of sentence 

of one year probation, which was imposed following his conviction for firearms 

not to be carried without a license. We affirm.

The trial court summarized the facts as follows:

On or about June 10, 2020, [at approximately 1:00 a.m.] Patrol 

Sergeant Brian Turack received a dispatch 911 call regarding 

individuals throwing bottles in a local McDonald’s [Restaurant]

parking lot [in a known high-crime area]. The McDonald’s is in 

very close proximity to the municipal building [where] Sergeant 

Turack [received the aforementioned call]. Upon arrival at the 

McDonald’s parking lot, Sergeant Turack observed Appellant 

walking past the drive-thru of the McDonald’s towards the 

roadway. Appellant was wearing a hooded sweatshirt with his 

hood up in the late hours of the night on a humid and hot evening. 

Sergeant Turack subsequently drove his vehicle towards Appellant 

eventually stopping his vehicle in front of him. Sergeant Turack 

approached Appellant and asked if he could speak with him. 

Appellant stated that he was just going home. Sergeant Turack 

then requested Appellant remove his hands from his pockets while 

Appellant was speaking with him. Appellant complied at first but 
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repeatedly put his hands back in his sweatshirt. Despite Sergeant 

Turack’s repeated requests for Appellant to keep his hands out of 

his pockets while speaking with him, Appellant continued to put 

his hands in his pocket. Based upon Appellant’s non-compliance 

to remove his hands from his pocket, Sergeant Turack performed 

a Terry[1]frisk for office safety. Immediately upon touching 

Appellant’s waist area and pocket of his sweatshirt, Sergeant 

Turack felt what he knew to be a firearm.

Trial Court Opinion, 6/15/21, at 1-2 (cleaned up). Further investigation 

revealed that the gun was reported stolen in 2017. 

Sergeant Turack charged Appellant with receiving stolen property and 

firearms not to be carried without a license. Appellant filed a motion to 

suppress the firearm on the grounds that Sergeant Turack lacked reasonable 

suspicion for either the investigative stop or the Terry frisk. The court denied

the motion to suppress. Following a stipulated non-jury trial, the trial court 

convicted Appellant of carrying firearms without a license, acquitted him of 

receiving stolen property, and immediately imposed one year of probation. 

Appellant filed a timely notice of appeal on August 6, 2021, and complied 

with Pa.R.A.P. 1925(b). He presents three issues for our review:

I. Whether the trial court erred in denying suppression where 

Sergeant Turack conducted an investigative detention of 

Appellant as soon as he ordered him: “Come over here[,]”

but, at the precise moment of seizure, the officer lacked 

reasonable suspicion, based on specific and articulable 

facts, to believe that Appellant was engaged in criminal 

activity?

II. Assuming, arguendo, that Sergeant Turack did not seize 

Appellant based on the above-described circumstances, 

whether the trial court erred in denying suppression where 

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1 Terry v. Ohio, 392 U.S. 1 (1968).
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Sergeant Turack conducted an investigative detention of 

Appellant as soon as he ordered him: “[P]ut your hands on 

the car[,]” but, at the precise moment of seizure, the officer 

lacked reasonable suspicion, based on specific and 

articulable facts, to believe that Appellant was engaged in 

criminal activity?

III. Assuming, arguendo, that the interaction between Sergeant 

Turack and Appellant was never unlawful, whether the trial 

court erred in denying suppression where Sergeant Turack 

conducted a Terry frisk of Appellant’s person without 

reasonable suspicion, based on specific and articulable 

facts, to believe that he was presently armed and 

dangerous?

Appellant’s brief at 5 (cleaned up). 

As Appellant’s arguments are inextricably intertwined and collectively 

relate to whether Sergeant Turack had “reasonable suspicion” to stop 

Appellant on the evening in question, this Court will address the arguments 

together. Our standard of review of an order denying suppression is well 

established:

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. 

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

suppression hearing.

Commonwealth v. Bowens, 265 A.3d 730, 747 (Pa.Super. 2021) (cleaned 

up). 
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Preliminarily, we note that there are three different types of interactions 

between individuals and law enforcement. The first type of interaction is a 

“mere encounter,” which does not require any suspicion of criminal activity by 

the officer. Commonwealth v. Anderson, 276 A.3d 282, 293-94 (Pa.Super. 

2022) (en banc); see also Commonwealth v. Adams, 205 A.3d 1195, 

1199-1200 (Pa. 2019). An individual is not required to stop or respond during 

a mere encounter, and as such, this interaction does not constitute a seizure

by law enforcement. Anderson, supra at 293-94. The next level of 

interaction is an “investigative detention,” which is a temporary period of 

custody, which requires that the officer have reasonable suspicion of criminal 

activity by the briefly seized individual. Id. The final type of encounter is a 

“custodial detention,” which is the functional equivalent of arrest and requires 

an officer to have probable cause. Id. Both investigative and custodial 

detentions constitute seizures. In order to determine whether a seizure has 

occurred, courts apply the “free to leave test,” which “requires the court to 

determine whether, taking into account all of the circumstances surrounding 

the encounter, the police would have communicated to a reasonable person 

that he was not at liberty to ignore the police presence and go about his 

business.” Id. 

It is well-established that a police officer merely approaching an 

individual and asking questions does not, by itself, constitute a seizure. See 

Commonwealth v. K. Thomas, 179 A.3d 77, 82 (Pa.Super. 2018) (citing 

Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding that police can 
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approach people at random, ask questions, and seek consent to search) 

(collecting cases); Florida v. Royer, 460 U.S. 491, 497 (1983) (“[L]aw 

enforcement officers do not violate the Fourth Amendment by merely 

approaching an individual in the street or in another public place by asking 

him is (sic) he is willing to answer some questions, [or] by putting questions 

to him if the person is willing to listen[.]”); Commonwealth v. Smith, 836 

A.2d 5, 11 (Pa. 2003) (“[T]he mere approach of police followed by police 

questioning ... does not amount to a seizure”); In re D.M., 781 A.2d 1161, 

1164 (Pa. 2001) (“[T]he police may approach anyone in a public place to talk 

to him, without any level of suspicion[.]”)). 

Furthermore, if “an individual on his own accord, puts his hands in his 

pocket, thereby creating a potential danger to the safety of a police officer,

the officer may justifiably reach for his side arm and order the individual to 

stop and take his hand out of his pocket.” Commonwealth v. Coleman, 19 

A.3d 1111, 1117 (Pa.Super. 2011). While this type of reaction by an officer 

does not automatically transform a mere encounter into an investigative 

detention, that determination is a fact-specific inquiry and partially dependent 

on the timing of the request. Id.; see also Commonwealth v. Hemingway, 

192 A.3d 126, 130 (Pa.Super. 2018).

In the matter sub judice, the suppression court determined that the 

interaction between Appellant and Sergeant Turack constituted a mere 

encounter and remained a mere encounter even after Appellant was asked to 

remove his hands from the center sweatshirt pocket. The suppression court 
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cited K. Thomas, supra at 82-83, for the proposition that a police officer is 

justified in insisting that an individual not conceal their hands during an 

encounter with police, and that such a request does not transform a mere 

encounter into an investigative detention. See Trial Court Opinion, 6/15/21, 

at 4. Specifically, the suppression court determined that, because Sergeant 

Turack did not turn on his overhead lights, command Appellant to stop, or 

threaten Appellant to comply, Appellant was free to leave. Id.

Appellant first argues that the suppression court erred when it held that 

the interaction between Sergeant Turack and Appellant was a mere encounter. 

Appellant contends that based upon the totality of the circumstances, once 

Sergeant Turack exited his vehicle and ordered Appellant to “come over here,” 

after twice rebuffing Sergeant Turack, the encounter became an investigatory 

detention. See Appellant’s brief at 24-36. We agree.

To determine whether a seizure by law enforcement occurred during an 

interaction between law enforcement and an individual, “courts conduct an 

objective examination of the totality of the surrounding circumstances.” 

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014). “The totality of the 

circumstances test is ultimately centered on whether the suspect has in some 

ways been restrained by physical force or show of coercive authority.” 

Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa.Super.2019) (quoting 

Lyles, supra at 302-03). No single factor is determinative as to whether a 

seizure occurred, rather it is an objective test as to “whether a reasonable 

person would have felt free to leave or otherwise terminate the encounter.” 
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Id. This is a fact-specific inquiry that focuses upon the conduct of law 

enforcement and the setting of the interaction. Id. 

Some factors in reviewing the totality of the circumstances include, but 

are not limited to, “the threatening presence of several officers, the display of 

a weapon by an officer, some physical touching of the person of the citizen, 

or the use of language or tone of voice indicating that compliance with the 

officer’s request might be compelled.” Luczki, supra at 543 (quoting 

Commonwealth v. Hampton, 204 A.3d 452, 457 (Pa.Super. 2019)). “With 

respect to the show of authority needed for detention, the circumstances must 

present some level of coercion, beyond the officer’s mere employment, that 

conveys a demand for compliance or threat of tangible consequences from 

refusal.” Id. at 544 (citations omitted). Moreover, “[a]lthough cases 

involving similar or comparable seizure determinations may serve as 

guideposts, a suppression court must independently employ the totality-ofthe-circumstances test in determining whether a seizure occurred.” 

Commonwealth v. D. Thomas, 273 A.3d 1190, 1197-98 (Pa.Super. 2022).

As noted above, the suppression court’s conclusion that Appellant’s 

interaction with Sergeant Turack constituted a mere encounter was predicated 

upon this Court’s holding in K. Thomas. In that case, two officers in uniform 

and in a marked police vehicle responded to a radio report of a black male 

with a gun wearing a blue hooded sweatshirt at approximately 1:20 a.m. in a 

high crime area. Id. The officers arrived at the area within minutes of the 

dispatch and saw an individual wearing a black hooded sweatshirt. Id. As 
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the officers circled the block, the individual would reverse directions and look 

back at the officers. The officers pulled up next to the individual, whose hands 

were in his pockets, and asked to see his hands. Id. Since the individual 

refused to take his hands out of his pockets, the second officer exited the 

vehicle, removed the individual’s hands from his pockets and patted him 

down, discovering a firearm on the individual’s person. Id. This Court found 

that the officer’s request to remove his hands did not elevate the encounter 

to an investigative detention. Id. (citing Coleman, supra at 1117) 

(additional citations omitted).

However, these suppression cases are fact-intensive and each stands 

on its own specific fact pattern. In Commonwealth v. Hemingway, 192 

A.3d 126 (Pa.Super. 2018), two uniformed officers responded to an 

unspecified noise complaint in a high crime area around 2:00 a.m. When the

officers arrived at the location, they saw the defendant, with his hands in his 

pockets, and another individual conversing with two women in a car. Id. at 

128. The officers approached the defendant and ordered him to remove his 

hands from his pocket and put his hands on his head, so the officers could 

conduct a pat-down search. Id. Rather than endure the search, the 

defendant fled on foot. Id. On appeal, this Court held that the initial 

interaction between the officers and the defendant was not a mere encounter 

because the interaction commenced with a command to remove his hands 

from his pockets. Id. This Court determined that the actions of speaking to 

a woman in a high crime area with his hands in his pockets did not support 
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the existence of reasonable suspicion sufficient for a detention, and the 

command to remove his hands from his pockets was improper. Id. at 131. 

While noting that the inquiry is fact specific, the Hemingway Court 

distinguished the facts before it from several other seemingly similar 

situations. Specifically, the court observed that, in Commonwealth v. Hall, 

713 A.2d 650, 653 (Pa.Super. 1998), rev’d on other grounds, 771 A.2d 1232 

(Pa. 2001), the defendant initiated contact with the police. See Hemingway, 

supra at 131. Likewise, Coleman, supra, was distinguished on the fact that, 

unlike in Hemingway, the officers were responding to a violent crime in 

progress, rather than a mere noise complaint. Id. Additionally, the defendant

in Coleman matched the specific description of the suspect, and he placed his 

hands in his pockets after the police initiated the encounter. Id. The 

Hemingway Court also distinguished the relevant facts from K. Thomas, 

supra, wherein the defendant matched the description of an armed suspect 

and behaved suspiciously by attempting to evade the officers. Id. at 131-32. 

Applying this caselaw to the instant case, we note the following relevant 

facts. In the matter sub judice, Sergeant Turack was in uniform and arrived 

at the scene in a marked vehicle following an anonymous radio call that 

individuals were throwing bottles outside of a McDonald’s shortly after 1:00 

a.m. on a warm, humid, night. N.T. Suppression Hearing, 4/27/21 at 5-6. 

Sergeant Turack testified that the area in question had several vehicle breakins where firearms were stolen from vehicles. Id. at 7, 19-20. Sergeant 

Turack observed Appellant walking in the drive-thru of the McDonald’s, 
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wearing a hooded sweatshirt, with the hood pulled up, and his hands in the 

center pocket. Id. At that time, Sergeant Turack rolled down the window and 

asked to talk to Appellant, to which Appellant kept walking and stated that he

was just trying to get home. Id. at 23. After two failed attempts to talk to 

Appellant, Sergeant Turack exited the vehicle and stated, “I need to talk to 

you, come on over here,” at which point, Appellant stopped and turned 

towards Sergeant Turack. Id.

Based upon the totality of the circumstances, a reasonable person would 

not have felt free to leave or otherwise terminate the encounter. Here, like in 

Hemingway, supra at 131, law enforcement were responding to reports of

a non-violent offense. Appellant clearly attempted to leave. He ignored 

Sergeant Turack’s initial requests to talk, and as he continued to walk away

from the officer, Appellant eventually replied, “I’m just trying to go home.” 

N.T. Suppression Hearing, 4/27/21 at 8. A reasonable person would not have 

felt free to leave once a uniformed officer exited their marked patrol vehicle 

and commanded, “I need to talk to you, come on over here,” after two 

previous attempts to avoid an interaction with that uniformed officer. 

Accordingly, at the time Sergeant Turack exited the vehicle and issued the 

command, having been twice rebuffed by Appellant, the encounter elevated 

into an investigative detention for which Sergeant Turack was required to 

possess reasonable suspicion. See Hampton, supra at 456-57 (“If however, 

a police presence becomes too intrusive, the interaction must be deemed an 
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investigative detention or seizure. An investigative detention, by implication, 

carries an official compulsion to stop and respond.”).

Having determined that Sergeant Turack seized Appellant, our two 

remaining inquiries concern whether Sergeant Turack possessed reasonable 

suspicion to conduct an investigative detention and to frisk Appellant for a 

weapon, respectively. We address the issues seriatim. “An investigatory 

detention is justified only if the detaining officer can point to specific and 

articulable facts which, in conjunction with rational inferences derived from 

those facts, give rise to a reasonable suspicion of criminal activity and 

therefore warrant the intrusion.” Hampton, supra at 459. In order to 

determine whether law enforcement had reasonable suspicion, this Court 

looks at the totality of the circumstances. See Commonwealth v. Raglin, 

178 A.3d 868, 872 (Pa.Super. 2018). Moreover, “due weight must be given 

[to the law enforcement officer], not to his inchoate and unparticularized 

suspicion or ‘hunch,’ but to the specific reasonable inferences he is entitled to 

draw from the facts in light of his experiences.” Id. (quoting Terry v. Ohio,

392 U.S. 1, 27 (1968))); see also Commonwealth v. Riley, 715 A.2d 1131, 

1136 (Pa.Super. 1998) (holding that this Court must “view the circumstances 

through the eyes of a trained officer, not an ordinary citizen.”). 

Furthermore, reasonable suspicion can be established through a 

combination of otherwise innocent facts, when taken together. Raglin, 

supra, at 872 (citing Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 

1999)). Reasonable suspicion is “considerably less than proof of wrongdoing 
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by a preponderance of the evidence.” Commonwealth v. Millburn, 191 A.3d 

891, 898 (Pa.Super. 2018) (quoting Navarette v. California, 572 U.S. 393 

(2014); see also Commonwealth v. Fink, 700 A.2d 447, 449 (Pa.Super. 

1997) (explaining that reasonable suspicion is less than a “certainty, a 

preponderance, or even a fair probability.”). Some factors to consider when 

determining whether an officer has reasonable suspicion, include “tips, the 

reliability of informants, time, location, and suspicious activity, including 

flight.” Millburn, supra at 898. 

Recall that Sergeant Turack, a seven-year veteran, was responding to a 

call about individuals throwing bottles outside of a McDonald’s around 1:00 

a.m. N.T. Suppression Hearing, 4/27/21 at 5, 12, 18. The caller did not 

provide a description of the individuals. Id. Sergeant Turack arrived at the 

scene approximately three minutes later and observed Appellant walking in 

the area of the McDonald’s drive-thru wearing a hooded sweatshirt with the 

hood up, and his hands in his center pocket, on that muggy, summery, night. 

Id. at 6-7. Sergeant Turack was aware that dozens of thefts from vehicles 

had occurred in that area and around that time of night, including five or six 

thefts of firearms from vehicles. Id. at 19-20. Sergeant Turack explained 

that he “was looking at the time for somebody smashing bottles but knowing 

in the back of my mind that we have had all these incidents with stolen guns 

and, you know, people out at night checking cars.” Id. at 20. Moreover, 

Sergeant Turack testified that he knows people carry guns and weapons in 

their pockets. Id. 
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Thus, based upon the totality of the circumstances, Sergeant Turack had 

reasonable suspicion to stop Appellant for questioning. Sergeant Turack 

responded to the area within minutes of the 911 call, and observed Appellant

walking through a drive-thru of the McDonald’s in a high crime area2 after 

1:00 a.m. Moreover, Appellant was wearing a sweatshirt with a hood up and 

hands in his pockets on a hot, stuffy, night. Accordingly, Sergeant Turack had 

reasonable suspicion to stop Appellant.

Similarly, Sergeant Turack also had reasonable suspicion to conduct a

Terry frisk of Appellant for officer safety. If an “officer has reasonable 

suspicion, based on specific and articulable facts, that the detained individual 

may be armed and dangerous, the officer may conduct a frisk of the 

individual’s outer garments for weapons.” Commonwealth v. Scarborough, 

89 A.3d 679, 683 (Pa.Super. 2014) (cleaned up). The purpose of a Terry 

frisk is to allow an officer to continue an investigation without fearing for the 

safety of the officer or others nearby. Id. An officer’s observation of a 

suspect’s reaching movements can lead an officer to reasonably conclude his 

safety is in jeopardy. See Commonwealth v. Wright, 224 A.3d 1104, 1109 

(Pa.Super. 2019). Moreover, “[i]n considering whether evidence supports a 

Terry frisk, we are ‘guided by common sense concerns, giving preference to 

the safety of the officer during an encounter with a suspect where 

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2 Sergeant Turack specifically indicated that approximately twenty-forty

thefts from automobiles occurred in that area, including the thefts of five to 

six firearms.
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circumstances indicate that the suspect may have, or may be reaching for a 

weapon.’” Wright, supra at 1109 (quoting Commonwealth v. Mack, 953 

A.2d 587, 590 (Pa.Super. 2008)). 

When Sergeant Turack initiated the stop, Appellant’s hands were in the 

center pocket of his sweatshirt, with his hood up, on a warm, sticky, night. 

Sergeant Turack, a seven-year veteran, knowing that he was in close 

proximity to Appellant and that people carry guns and weapons in the center 

pocket, asked Appellant to remove his hands from that pocket. Appellant 

complied; however, Appellant proceeded to place his hands back into the 

pocket and then remove them, again, upon request. This occurred between 

two and five times during Sergeant Turack’s interaction with Appellant. 

Moreover, Sergeant Turack testified that he made the request for his safety. 

See N.T., 4/27/21, at 21-22. He explained, “I know that people carry guns 

and weapons in their pockets. And at that time I was in pretty close 

proximity.” Id. at 20. Appellant refused to comply with the request to keep 

his hands out of his pocket. As described by Sergeant Turack, “when he would 

take them out, [he] would immediately go back toward the area [of the center 

pocket].” Id. at 22. Accordingly, because Appellant kept returning his hands 

to that center pocket despite repeated requests to remove them, Sergeant 

Turack was permitted to frisk Appellant’s outer garments for weapons. See 

Coleman, supra at 1117. 

In sum, although the suppression court erred in finding that the entire 

interaction between Appellant and Sergeant Turack constituted a mere 
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encounter until after the firearm was discovered, Appellant is not entitled to 

relief. For the foregoing reasons, Sergeant Turack possessed reasonable 

suspicion to initiate the investigatory stop and to conduct the subsequent frisk 

for weapons. Thus, the suppression court did not err in denying Appellant’s 

motion to suppress the physical evidence. See Commonwealth v. 

Singletary, 803 A.2d 769, 772-73 (Pa.Super. 2002) (“It is well[-]settled that 

where the result is correct, an appellate court may affirm a lower court’s 

decision on any ground without regard to the ground relied upon by the lower 

court itself.”).

Judgment of sentence affirmed.

Judge Sullivan joins this Memorandum.

Judge Kunselman files a Concurring Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2022