J. A10037/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DANIEL McVEIGH, : No. 3367 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, May 26, 2015,

in the Court of Common Pleas of Philadelphia County

Municipal Court - Traffic Division at No. MC-51-CR-0028625-2014

BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017

Daniel McVeigh appeals from the May 26, 2015 judgment of sentence 

of nine months’ reporting probation imposed after he was found guilty of one 

count of possession of a controlled substance.1 After careful review, we 

affirm the judgment of sentence. 

The trial court summarized the relevant facts of this case as follows:

On August 22, 2014, Officer Rahill was on 

patrol in a high crime area near the intersection of 

Somerset and Mascher streets. At approximately 

10:30 AM, Rahill saw [a]ppellant failing to stop at a 

stop sign at the corner. After turning on his lights 

and sirens, the officer stopped [a]ppellant’s 2009 

Honda and approached the driver’s side. Appellant 

appeared very nervous and Officer Rahill saw him 

“stuffing” something into his left pocket. He 

subsequently asked [a]ppellant to step out of the 

vehicle for a safety frisk and frisked [a]ppellant’s left 

 

1 35 P.S. § 780-113(a)(16).
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pocket by patting the outside of the pants with an 

open palm. As a result of the open palm pat-down, 

Officer Rahill felt “a bumpy package” which he 

immediately recognized as heroin; in fact, he had felt 

this type of packaging dozens of times before. From 

[a]ppellant’s pocket, Officer Rahill recovered fifteen

small Ziploc packets of heroin bundled together with 

a rubber band. 

Trial court opinion, 7/8/16 at 1-2 (citations to notes of testimony omitted).

Appellant was subsequently arrested and charged with one count of 

possession of a controlled substance. On May 26, 2015, appellant made an 

oral motion before the Municipal Court of Philadelphia to suppress the 

physical evidence seized as a result of Officer Rahill’s stop, frisk, and search 

of his person. (See notes of testimony, 5/26/15 at 4-5.) Following 

testimony from both appellant and Officer Rahill, the trial court denied 

appellant’s suppression motion, and this matter immediately proceeded to a 

negotiated stipulated trial. (Id. at 53-55.) That same day, the trial court 

found appellant guilty of possession of a controlled substance and sentenced 

him to nine months’ reporting probation. (Id. at 56; see also negotiated 

stipulated trial order, 5/26/15.) On October 23, 2015, appellant filed a 

petition for writ of certiorari in the Philadelphia Court of Common Pleas, 

which was ultimately denied. On November 6, 2015, appellant filed a timely 

notice of appeal. On April 29, 2016, the trial court ordered appellant to file a 

concise statement of errors complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on 
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May 20, 2016, and the trial court filed its Rule 1925(a) opinion on July 8, 

2016.

Appellant raises the following issues for our review:

1. Where appellant was stopped in broad daylight 

for a minor traffic violation and the officer, as 

he approached, merely saw appellant put 

something in his pocket, was not the ensuing 

frisk unlawful as there were no reasonable 

grounds to believe appellant was armed and 

dangerous?

2. Was not appellant searched without probable 

cause and in violation of the plain feel 

exception to the warrant requirement where, 

during a frisk, the officer felt in appellant’s 

pants pocket what he described as a 

“bumpy package,” the incriminating nature of 

which was not immediately apparent?

Appellant’s brief at 3.

Our standard of review when addressing a challenge to a trial court’s 

denial of a suppression motion is well settled.

[An appellate court’s] 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, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal 

conclusions are erroneous. 
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Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015), appeal 

denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets in original).

“Both the Fourth Amendment of the United States Constitution and 

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals 

freedom from unreasonable searches and seizures.” Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 

158 (Pa. 2009) (citation and internal quotation marks omitted). “To secure 

the right of citizens to be free from such intrusions, courts in Pennsylvania 

require law enforcement officers to demonstrate ascending levels of 

suspicion to justify their interactions with citizens to the extent those 

interactions compromise individual liberty.” Commonwealth v. Reppert, 

814 A.2d 1196, 1201 (Pa.Super. 2002) (citation omitted). Courts in this 

Commonwealth have recognized three types of interactions between 

members of the public and the police: a mere encounter, an investigative 

detention, and a custodial detention. 

A mere encounter between police and a citizen need 

not be supported by any level of suspicion, and 

carr[ies] no official compulsion on the part of the 

citizen to stop or to respond. An investigatory stop, 

which subjects a suspect to a stop and a period of 

detention . . . requires a reasonable suspicion that 

criminal activity is afoot. A custodial search is an 

arrest and must be supported by probable cause.

Commonwealth v. Kendall, 976 A.2d 503, 506 n.2 (Pa.Super. 2009) 

(citations and internal quotation marks omitted). 
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In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the United 

States Supreme Court indicated that police may stop and frisk a person 

where they have a reasonable suspicion that criminal activity is afoot and 

that the suspect may be armed and dangerous. Id. at 27. “Reasonable 

suspicion is a less stringent standard than probable cause necessary to 

effectuate a warrantless arrest, and depends on the information possessed 

by police and its degree of reliability in the totality of the circumstances.” 

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). An appellate 

court must give weight “to the specific, reasonable inferences drawn from 

the facts in light of the officer’s experience and acknowledge that innocent 

facts, when considered collectively, may permit the investigative detention.” 

Id. (citation omitted). We are mindful of the fact that, 

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. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations 

and internal quotations omitted). 

Appellant first argues that Officer Rahill’s frisk of his person was 

unlawful because he lacked reasonable suspicion to believe that appellant 

was armed and dangerous. (Appellant’s brief at 7.) For the following 

reasons, we disagree.
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Upon review, we conclude that Officer Rahill was justified in 

conducting a Terry frisk of appellant after observing conduct that led him to 

reasonably conclude, in light of his experience as a police officer, that 

appellant may have been armed and dangerous. The record establishes that 

Officer Rahill was on patrol alone in a high drug and crime area the morning 

of August 22, 2014, when he observed appellant commit a traffic violation. 

(Notes of testimony, 5/26/15 at 7-8.) Officer Rahill testified that after 

stopping and approaching appellant’s vehicle, he observed that appellant 

was “visibly shaking and very nervous” and that he took evasive action by 

“stuffing something into his left pocket.” (Id. at 8.) Officer Rahill indicated 

that based upon his training and experience as a six-year veteran of the 

Philadelphia Police Department, he requested that appellant step out of his 

vehicle for a safety frisk. (Id. at 9-10.)

Courts in this Commonwealth have long recognized that although an 

appellant’s presence in a high-crime area is insufficient, in and of itself, to 

support a finding of reasonable suspicion, “nervous, evasive behavior” and 

“the fact that the stop occurred in a high crime area” are pertinent factors in 

determining reasonable suspicion. In re D.M., 781 A.2d 1161, 1163-1164 

(Pa. 2001) (citation and internal quotation marks omitted); see also

Commonwealth v. Valdivia, 145 A.3d 1156, 1162 (Pa.Super. 2016), 

appeal granted, 2017 WL 444717 (Pa. 2017) (stating, “nervous behavior 

during a traffic stop, combined with other factors, may give rise to 
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reasonable suspicion that criminal activity is afoot.” (citation omitted));

Commonwealth v. Buchert, 68 A.3d 911, 914-916 (Pa.Super. 2013), 

appeal denied, 83 A.3d 413 (Pa. 2014) (holding that an officer had reason 

to suspect that his safety was in danger sufficient to justify a warrantless 

search of defendant’s vehicle where the defendant made furtive movements, 

was extremely nervous, and the stop was conducted at night). Based on the 

foregoing, we agree with the trial court that, under the totality of the 

circumstances, Officer Rahill’s frisk of appellant was supported by reasonable 

suspicion that appellant may be armed and dangerous.

Appellant further contends that Officer Rahill exceeded the permissible 

scope of the plain feel doctrine to the warrant requirement “where, during a 

frisk, the officer felt in appellant’s pants pocket what he described as a 

‘bumpy package,’ the incriminating nature of which was not immediately 

apparent[.]” (Appellant’s brief at 13.) We disagree.

This court has recognized that “[i]f, during the course of a valid 

investigatory stop, an officer observes unusual and suspicious conduct on 

the part of the individual which leads [the officer] 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.3d 1235, 1239 (Pa.Super. 2003).

In order to justify a frisk under Terry[,] the officer 

must be able to point to particular facts from which 

he reasonably inferred that the individual was armed 

and dangerous. Such a frisk, permitted without a 
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warrant and on the basis of reasonable suspicion less 

than probable cause, must always be strictly limited 

to that which is necessary for the discovery of 

weapons which might be used to harm the officer or 

others nearby.

Id. (internal quotation marks and citation omitted). “Weapons found as a 

result of [a Terry] pat-down may be seized. Nonthreatening contraband 

may be seized only if it is discovered in compliance with the plain 

feel doctrine.” Commonwealth v. Thompson, 939 A.2d 371, 376 

(Pa.Super. 2007), appeal denied, 956 A.2d 434 (Pa. 2008) (emphasis 

added).

In explaining the plain feel doctrine, the Pennsylvania Supreme Court 

has stated:

[In Minnesota v. Dickerson, 508 U.S. 366, 375 

(1993), the United States Supreme Court] adopted 

the so-called plain feel doctrine and held that 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. . . . 

Immediately apparent means that the officer readily 

perceives, without further exploration or searching, 

that what he is feeling is contraband. If, after 

feeling the object, the officer lacks probable cause to 

believe that the object is contraband without 

conducting some further search, the immediately 

apparent requirement has not been met and the 

plain feel doctrine cannot justify the seizure of the 

object.
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Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (some 

citations omitted).

Instantly, Officer Rahill testified that during the course of the safety 

frisk of appellant, he felt a “bumpy package” in appellant’s front left pocket 

that he immediately recognized as narcotics packaging based on his 

experience as a six-year veteran of the Philadelphia Police Department with 

over 50 narcotics arrests. (Notes of testimony, 5/26/15 at 9-11.) On 

cross-examination, Officer Rahill further testified as follows:

Q. Fair to say you didn’t see any kind of bulge in 

his pocket when [appellant] stepped out of the 

car?

A. Initially, when he stepped out of the car, I did 

not see a bulge, but when I did the safety 

frisk, when I patted his jeans, the left pocket 

there -- I could -- at that time, I saw there was 

a bulge and I could feel the narcotics through 

the pocket.

. . . .

Q. And when you say you recognized it as 

narcotics packaging, you recognized it was 

little Ziploc packets?

A. The way it was packaged was [sic] bundled 

together with a rubber band around it.

Q. And -- and it’s your testimony that you could 

feel that after a quick frisk?

A. Yes. 
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Id. at 23-25. The record also indicates that Officer Rahill’s pat-down of 

appellant was conducted with an “open palm,” and he did not manipulate or 

squeeze the packaging he felt in appellant’s left pocket. (Id. at 24.)

Based on this testimony, we agree with the trial court’s conclusion that 

Officer Rahill’s seizure of the narcotic packets from appellant’s pocket was 

justified under the “plain feel” doctrine and did not exceed the proper scope 

of a Terry pat-down. See Stevenson, 744 A.2d at 1264-1265. 

Accordingly, appellant’s claim that the trial court erred in failing to suppress 

the physical evidence seized as a result of Officer Rahill’s stop, frisk, and 

search of appellant’s person must fail.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2017