J-S51023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SEYMOOR AGUSTUS DOYLE,

Appellee No. 1616 EDA 2015

Appeal from the Order Entered May 1, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003506-2014

BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 13, 2018

The Commonwealth appeals from the trial court’s May 1, 2015 order 

granting in part and denying in part Seymoor Agustus Doyle’s (“Appellee”)

Omnibus Pre-Trial Motion. Specifically, the Commonwealth contends that 

the trial court erred in suppressing statements made by Appellee to 

Officer Jeffrey Shull (“Officer Shull”) and Agent Alan Basewitz 

(“Agent Basewitz”) before Appellee was Mirandized.

1, 2 We affirm in part,

reverse in part and remand.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 The May 1, 2015 order denied suppression of statements made by the 

Appellee to Agent Basewitz. However, the trial court’s opinion later clarified 

(Footnote Continued Next Page)
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The trial court set forth the following factual recitation:

This case involves the alleged March 6, 2014 trafficking of 

marijuana through a private parcel carrier. Employees of United 

Parcel Service (UPS) examined a package which revealed 

contents suspicious for marijuana. Agents of the Pennsylvania 

Attorney General’s Office were called to investigate the package.

The investigation revealed the package contained 25 lbs. of 

suspected marijuana. A controlled delivery was conducted by 

agents of the Pennsylvania Attorney General’s Office, DEA and 

Springfield Township Police Department resulting in the arrest of 

[Appellee] who claimed the package.

[Appellee] stands charged on six (6) criminal counts

including: (1) violation of [35 P.S. §780-113 (a)(30)]

manufacture, delivery, or possession with intent to deliver 

marijuana an ungraded felony; (2) violation of [35 P.S. § 780-

113 (a)(16)] intent to possess controlled substance by person 

not registered to lawfully possess (marijuana) an ungraded 

misdemeanor; (3) violation of [18 Pa.C.S. § 7512 (a)] criminal 

use of communication facility, a third degree felony; (4) violation 

of [18 Pa.C.S. § 903 (c)] criminal conspiracy criminal use 

communication facility, a felony of the third degree; (5) violation 

of [18 Pa.C.S. §903 (c)] criminal conspiracy to possession of 

marijuana, an ungraded misdemeanor; (6) violation of [18 

Pa.C.S § 903 (c)] criminal conspiracy to deliver[] marijuana, an 

ungraded felony.

On February 19, 2015 the [trial court] conducted 

proceedings in connection with [Appellee’s] omnibus pretrial 

motion which included a suppression motion and at that time 

testimony was received by the Commonwealth’s witnesses

Agent Timothy King, Agent Alan Basewitz and Officer 

Jeffrey Shull. An Order was entered on [May 1], 2015 

suppressing certain un-Mirandized statements and in part 

denying suppression of certain Mirandized statements. It is from 

the [May 1], 2015 Order of Court from which [the 

Commonwealth] appeals.

(Footnote Continued) _______________________

that the court was suppressing only the pre-Miranda statements to 

Agent Basewitz and denying suppression of the post-Miranda statements. 

Trial Court Opinion, 12/20/16, at 1.
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* * *

On March 6, 2014 Agent King was working in his capacity 

as a narcotics agent for the Pennsylvania Attorney General’s 

office when he and his partner received a request from UPS 

management to investigate a suspicious parcel that they had at 

their Philadelphia airport facility.

* * *

Agent King testified that he appeared at the facility and 

was presented with a UPS package which was already opened. 

He observed a large plastic shrink-wrap ball which he’s seen on 

many prior occasions and he suspected it to be marijuana. Agent 

King estimated the dimensions of the package to be 

approximately 12" x 16". 

[Agent King further testified that t]he box’s label indicated 

that it was shipped from Custom Fabric in Burlington[,]

North Carolina but that his investigation revealed it had actually 

been shipped from E and G Mailboxes in Los Angeles, California. 

Agent King testified that E and G [M]ailboxes [is] a private 

shipping and receiving agency. 

Agent King testified that the box was addressed to 

Outstanding Designs at 491 Baltimore Pike in Springfield, that 

491 Baltimore Pike is a MailSource[] shipping and receiving 

agency. He explained that his contact with MailSource revealed 

that Outstanding Designs Company had an account with the 

MailSource.

Agent King testified that he returned the package to his 

headquarters and conducted a field test on the contents which 

revealed a 25 pound ball of compressed marijuana. He resealed 

the package and along with other agents and task force agents 

went to 491 Baltimore Pike with the package. He placed the

package in a pile in the middle rear of the store where incoming 

packages were generally piled up. Agent King then set up 

surveillance inside the store.

At 11:30 AM Agent King observed [Appellee] walk into the 

MailSource and walk directly to the pile of packages and pick up 
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the marijuana package without even reading the label and 

walked out the door with it.

Agent King testified he observed [Appellee] walk to a gold 

Nissan Maxima in the parking lot and place the package on the 

rear seat area and a get into the car and drive it out of the 

parking lot all the while the other backup officers were following. 

Agent King explained that he was in radio communication with

the officers outside and they also observed [Appellee] enter and 

exit with the package and place it in his vehicle. 

* * *

[Agent Basewitz took the stand next and testified that 

after Appellee put the package in his car and drove out of the 

parking lot], a Springfield Township unmarked police car 

operated by Officer Jeffrey Schull followed [Appellee’s] vehicle 

and activated its emergency lights and [Appellee] pulled into a 

parking lot adjacent to a Home Depot. Officer Jeffrey Schull then 

spoke with [Appellee] ostensibly for a routine traffic stop and 

eventually removed him from the vehicle and had him standing 

at the rear trunk area of the car when Agent Basewitz

approached with another Officer Thomas Hawn of the 

Philadelphia Police Department. [Appellee] contended he had 

just come from the Hibachi restaurant. Agent Basewitz 

confronted [Appellee] about coming from the MailSource and 

[Appellee] relented and acknowledged coming from the 

MailSource. 

* * *

Agent Basewitz testified that after [Appellee] voluntarily 

acquiesced in the search of the trunk of his car, the agents 

asked him where he was coming from and what he was doing 

with the package. [Appellee] answered that he was going to 

Bosco Moving and Storage at 53rd and Baltimore in Philadelphia 

and was intending to re-ship the package. Further Agent 

Basewitz testified [Appellee] said he was picking the package up 

for somebody he knows as "Peter". [He also testified that], 

[Appellee] stated that he knew "Peter" through a woman he has 

known for several years. [Appellee] was to be paid one hundred 

dollars to retrieve (and re-ship) the package. [Basewitz testified 

that Appellee told him] that this "Peter" was going to call him 

when he arrived at Bosco and tell him the name and address of 

the person to re-ship the package. [Appellee] refused to permit 
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the agents to search his car. At this point [Appellee] was 

Mirandized and a consensual conversation purportedly ensued.

The Agent testified that [Appellee] was not handcuffed 

until Agent Hawn read him Miranda warnings and then engaged

[in] further conversation. Agent Basewitz described [Appellee]

as very animated when standing by the trunk of his car; that he 

was walking and pacing and walking back and forth and was 

agitated and that he appeared angry and defensive. [Appellee]

was cautioned to stay close to his car. Essentially, the Agents 

and Officers were attempting to gain [Appellee’s] cooperation in 

the investigation.

At the scene, [Appellee] repeatedly refused to permit the 

search of the parcel package containing the illegal marijuana. In 

response to a question of whether drug dogs would react to a 

sniff of his car, [Appellee] said he loaned his car earlier that day 

to people who brought it to a repair shop in west Philly and that 

they had smoked "weed" in the car.

Apparently as the conversation continued [Appellee] began 

to contradict himself regarding the story surrounding loaning his 

vehicle to two people who smoked "weed" in it. [Appellee] could 

not identify the repair shop where the vehicle was purportedly 

taken. 

With respect to the contents of the box [Appellee] said he 

doesn’t care what’s in it is (sic) not any of his business and he 

doesn’t care if it is guns, marijuana, cocaine or pornography.

Agent Basewitz was asked if he purposely engaged in 

conversation to elicit information prior to [Appellee] being 

Mirandized. The agent responded that they engaged in a 

pretextual stop and conversation but that there wasn’t much 

substance to that. That a conversation was attempted to 

determine where he was going and get some cooperation or 

consent. [Appellee] resisted that attempt.

On cross-examination the agent admitted that he did 

confront [Appellee] with the fact that he saw him come from the 

MailSource not Hibachi.

Agent Basewitz testified that Officer Schull, himself and 

Officer Hawn were all present at the back of the car. Although 
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there were a dozen officers at the scene most were unknown 

(undercover of some kind) to [Appellee]. Agent Basewitz 

testified that the post–Miranda conversations with the [Appellee]

were essentially the same as the pre–Miranda conversations. 

The agent admitted there were some conversations that 

occurred pre-Miranda that elicited different information than 

post-Miranda conversations. The post-Miranda conversation

concerned the people who smoked weed in his car, the drug sniff 

dog and forgetting the name of the repair shop and its owner. 

On redirect the agent testified that [Appellee] also 

possessed $2,049.00 in cash in his pocket. [Appellee] blurted 

that it was tuition money for his son. Agent Basewitz’s 

testimony concluded.

Officer Jeffrey Shull was next called to testify.

* * *

Officer Shull testified that after he pulled [Appellee’s] car 

over, he spoke to [Appellee] through the passenger side window 

requesting his vehicle information, license, insurance and 

registration. Officer Shull treated it as a regular vehicle stop. 

Ultimately [Appellee] provided everything the officer asked for. 

The officer engaged [Appellee] in a conversation on where he 

was coming from and initially [Appellee] responded that he was 

coming from Hibachi, a Chinese restaurant. Officer Shull asked 

him if he had anything illegal in the car and [Appellee] stated 

"no you can check the trunk" At that point DEA agents arrived on 

the scene. Officer Shull had no further involvement at that 

point.

Trial Court Opinion, 12/20/16, at 2-12 (citations omitted).

The Commonwealth presents a single issue for our review:

Whether the trial court erred as a matter of law in granting 

the [Appellee’s] motion to suppress all the pre-Miranda

statements made by [Appellee] during a lawful, non-custodial 

investigative detention?

Commonwealth’s Brief at 1.
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Specifically, the Commonwealth argues the trial court erred when it 

suppressed Appellee’s pre-Miranda statements made to Officer Shull that 

he was leaving an Hibachi restaurant, and the answers Appellee gave to

Agent Basewitz’s questions regarding the package Appellee had retrieved

and his whereabouts prior to being stopped. The Commonwealth asserts 

that the above statements were made during what was effectively a brief 

traffic stop, before the stop turned custodial, that did not require Appellee be 

Mirandized. Commonwealth’s Brief at 16–17. 

Our standard of review is well established:

When the Commonwealth appeals an order suppressing 

evidence, we may consider on review only the evidence from the 

defendant's witnesses along with the Commonwealth's evidence 

that remains uncontroverted. Our standard of review is 

restricted to establishing whether the record supports the 

suppression court's factual findings; however, we maintain de 

novo review over the suppression court's legal conclusions.

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. 

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 courts below are 

subject to plenary review.

Commonwealth v. Forsythe, 164 A.3d 1283, 1286 (Pa. Super. 2017)

(citations omitted). 

Under Pennsylvania law, there are three types of encounters between 

citizens and police officers. Commonwealth v. Acosta, 815 A.2d 1078, 
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1082 (Pa. Super. 2003) (en banc). The first is a mere encounter, which 

requires no level of suspicion on the part of the officer and carries no 

compulsion for the citizen to respond. Id. The second is an investigative 

detention, which requires a showing of reasonable suspicion. Id. This 

second type of stop includes “a period of detention, but does not involve 

such coercive conditions as so constitute the functional equivalent of an 

arrest.” Id. Finally, the third category, arrest or custodial detention, must 

be supported by probable cause. Id. A statement made under custodial 

interrogation is presumptively involuntary unless the individual in custody is 

advised of his Miranda rights. Commonwealth v. Levanduski, 907 A.2d 

3, 23 (Pa. Super. 2006). 

“The overlying test to determine whether a person is being subjected 

to a custodial interrogation necessitating Miranda warnings is whether he is 

physically deprived of his freedom in any significant way or is placed in a 

situation in which he reasonably believes his action or movement is 

restricted by such interrogation.” Commonwealth v. Turner, 772 A.2d 

970, 973 (Pa. Super. 2001). See also Commonwealth v. Luster, 71 A.3d 

1029, 1051 (Pa. Super. 2013) (“Custodial interrogation has been defined as 

questioning initiated by the police after a person has been taken into 

custody or otherwise deprived of his or her freedom in any significant way”). 

Indeed, in order to determine if an individual has been detained, our 

Supreme Court set forth a non-exclusive list of factors to consider, including:
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the presence of police excesses, physical contact by the police or an attempt 

to restrain an individual’s movement, the demeanor of the police officer, the 

location of the confrontation, the police officer’s manner towards the 

individual, and the content of the questions asked by the officer. 

Commonwealth v. Strickler, 757 A.2d 884, 897–898 (Pa. 2000). A court 

should look at the totality of the circumstances when determining whether 

an individual has been subject to custodial interrogation. Commonwealth 

v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006). 

Turning first to the statements made to Officer Shull, the trial court 

found those statements were made while Appellee was subject to a custodial 

interrogation. Trial Court Opinion, 12/20/16, at 20. We disagree, and after 

reviewing the totality of Appellee’s interaction with Agent Shull, we find that 

the trial court erred when it suppressed the statements made to Officer Shull 

because their interaction did not reach the threshold of custodial 

interrogation. 

In the instant case, Officer Shull was alone when he stopped Appellee 

and requested Appellee’s license, registration, and insurance. N.T., 2/19/15, 

at 59. Officer Shull asked Appellee where he was coming from and if he had 

anything illegal in the car. Id. at 60. Appellee replied that he did not have 

anything illegal in the car and informed Officer Shull that he could search the 

trunk. Id. At that point, Officer Shull asked Appellee to step out of the car 

and the DEA agents arrived. Id. The entirety of Appellee’s exchange with 
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Officer Shull took a “couple minutes.” Id. Officer Shull had no further 

contact with Appellee once the DEA agents arrived. Id. at 61. 

Reviewing the relevant factors set forth in Strickler, 757 A.2d at 898–

899, we find Appellee was not subject to custodial detention. Here,

Officer Shull was a single police officer; thus there was no excessive police 

presence. Further, Officer Shull was not confrontational with Appellee. 

Instead, he asked routine questions and neither challenged Appellee on any 

of his responses nor attempted to restrain Appellee’s movement, beyond 

asking Appellee to exit the vehicle. To the extent the trial court found that 

Appellee’s interaction’s with Officer Shull constituted a custodial 

interrogation, the trial court erred. The Appellee’s statements to 

Officer Shull should not have been suppressed because they occurred during 

an investigatory detention, not a custodial detention. See Commonwealth 

v. Clinton, 905 A.2d 1026 (Pa. Super. 2006) (finding investigatory 

detention, not custodial interrogation, where police officer pulled appellee 

over after appellee ran a stop sign, asked appellee if he had any weapons or 

anything “the police should be aware of” and appellee responded that he 

“had a little bit of weed”).

The same cannot be said for Appellee’s interaction with Agent 

Basewitz. Again, looking at the totality of the circumstances, Appellee was 

subject to a custodial interrogation once Agent Basewitz and another officer
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arrived at the scene and began questioning him. As the trial court set forth 

in its opinion:

[Appellee and Officer Shull] were joined by Officer Hawn

and Agent Basewitz at the back of the car. Surrounded by three 

(3) law enforcement officers with additional officers immediately 

nearby as well as even more officers along a perimeter indicates 

a compelling police presence. Neither handcuffs nor weapons 

were immediately deployed, however [Appellee] was instructed 

to stay in place by officers when he began to pace and wander at 

the back of the car during questioning.

The manner of questioning proceeded with [Appellee]

being confronted with questions about where he was coming 

from, headed to and then confronted by officers with his 

inconsistencies and a demand for explanation. [Appellee’s]

responses quickly broke down. Law enforcement asked for 

permission to search his vehicle to which [Appellee] responded 

they could search the trunk of the vehicle. He said he did not 

give permission for the officers to search the package. 

Ultimately, the officers handcuffed and Mirandized [Appellee]

who continued to voluntarily answer essentially the same line of 

questioning.

Under the totality of the circumstances the statements 

made by [Appellee] prior to being Mirandized are properly 

suppressed. The questions were expressly for the purpose of 

benefiting the ongoing investigation and therefore would

foreseeably elicit incriminating admissions from [Appellee]. 

[Appellee’s] liberty was significantly restricted. The suppression 

hearing testimony was clear that agents were going to detain, 

question and likely charge whoever showed up to pick up the 

package containing marijuana. [Appellee] received specific 

orders to step and stay close to the rear bumper of his vehicle 

without wandering. The fact that neither handguns nor 

handcuffs were initially deployed is not in and of itself dispositive 

of the coerciveness of the interrogation. Rather, the officers 

quickly employed handcuffs and Mirandized [Appellee] and reinitiated virtually the same line of questioning eliciting even 

further incriminating statements once the officers felt [Appellee] 

was neither cooperative nor responsive.
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Also, the officer’s conversational tone in and of itself also 

did not obviate the necessities of Miranda. Essentially, the 

identical line of questioning was reengaged and the [Appellee]

voluntarily responded once Mirandized. The likelihood of eliciting 

incriminating answers from the [Appellee] was reasonably 

foreseeable because the officers were well aware of the 

contraband in the vehicle.

Trial Court Opinion, 12/20/16, at 18–19. 

We agree with the trial court’s assessment as it applies to Appellee’s 

interaction with Agent Basewitz and adopt it as our own. Appellee was 

under custodial interrogation when Agent Basewitz began questioning 

Appellee; thus, the trial court did not err when it suppressed Appellee’s 

statements to Agent Basewitz prior to Appellee receiving his Miranda

warning. 

Order affirmed in part and reversed in part. Case remanded for 

further proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/18