J-S41033-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KYLE NICHOLAS MOYER, 

Appellant No. 3519 EDA 2015

Appeal from the Judgment of Sentence October 1, 2015

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0004872-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 23, 2016

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Bucks County following Appellant’s conviction at a bench 

trial on the charges of receiving stolen property, possession of a firearm 

prohibited, firearms not to be carried without a license, carrying a firearm in 

public in Philadelphia, and possession of an instrument of crime.1 Appellant 

contends the trial court erred in failing to suppress the handgun, which was 

seized by the police from his vehicle. We affirm. 

Appellant was arrested and, represented by counsel, he filed a pre-trial 

motion seeking to suppress the evidence seized by the police from his 

____________________________________________

1 18 Pa.C.S.A. §§ 3925(a), 6105(a)(1), 6106(a)(1), 6108, and 907(a), 

respectively. 
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vehicle. On October 1, 2015, Appellant proceeded to a suppression hearing, 

at which Police Officers Emmanuel Folly and Darren Kardos testified.2 The 

trial court has aptly set forth the facts derived from the officers’ suppression 

hearing testimony as follows:

Officer Folly testified that at around 12:25 [a.m.] on 

January 6, 2015, he and Officer Kardos had been on patrol in a 

marked police van with approximately eight other officers when 

they came across a vehicle with its windows down parked next 

to a fire hydrant on the 3400 block of North Eighth Street, which 

is located in a “high crime area” in Philadelphia. There were no 

other vehicles in the area.

Officer Folly observed that there was a driver in the vehicle 

and a female, who was “slouched down” in the back seat, who 

then “put her hands underneath the seat.” This action raised 

Officer Folly’s suspicions that there might be a weapon in the 

vehicle. Officer Folly and Officer Kardos approached the vehicle 

and instructed the occupants to keep their hands where they 

could see them. They asked the occupants to exit the vehicle 

and then another male individual approached the vehicle from an 

adjoining street. That individual fled upon observing the 

presence of the police officers. The other police officers in the 

van pursued that individual on foot and in the van. Officer 

Kardos then searched the vehicle and recovered a handgun at 

which point the driver and the female were placed in handcuffs 

and taken into custody. (N.T., 10/1/15, pp. 7-33). 

Officer Darren Kardos testified that when the police van 

pulled up to the small four-door vehicle, the female occupant in 

the back seat looked very surprised, and in response to seeing 

the police van, she “immediately started hiding an object under 

____________________________________________

2 At the suppression hearing, the prosecutor explained that, although the 

physical evidence, i.e., a handgun, was seized from Appellant’s vehicle in 

Philadelphia County, the police later discovered the handgun had been stolen 

from a store in Bucks County. Thus, upon agreement between the relevant 

district attorneys’ offices, Appellant’s criminal matter proceeded in Bucks 

County. 
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the seat.” Officer Kardos stated that they observed the windows 

of the vehicle were down and became suspicious because it was 

very cold outside. Officer Kardos became concerned for his and 

the other police officers’ safety when he observed the female’s 

actions, and stated he “knew something was wrong.” Officer 

Kardos testified that the neighborhood where this incident 

occurred is “pretty run down” and “is known for one thing, it’s 

for heroin and cocaine. . . .[I]t’s a very well-known drug area.” 

As a result, he thought that the vehicle’s occupants were there 

to purchase drugs. (N.T., 10/1/15, pp. 36-43). 

Officer Kardos testified that he, Officer Folly[,] and [a] 

female police officer exited the police van and approached the 

vehicle. Officer Kardos approached the back of the vehicle and 

started a conversation with the female in the back seat, 

instructing her to put her hands on the headrest in front of her. 

He stated she was very nervous, and he observed “little orange 

needle caps [lying] around” in the back seat of the vehicle. 

Officer Kardos stated that because the female had difficulty 

following his directions and her actions were suspicious, he felt 

his safety was in jeopardy and he asked her to leave the vehicle. 

He then observed a small black handgun on the floor of the 

vehicle where her feet had been. Officer Kardos retrieved the 

gun and tried to unload it, but was unable to “figure out how to 

get the weapon unloaded safely.” He then advised Officer Folly 

to handcuff the driver, who he identified as Appellant. 

Supervisors were then called over, at which point Appellant was 

taken into custody and placed in a police vehicle. (N.T., 

10/1/15, pp. 43-51, 55-56).

After Appellant was handcuffed, Officer Kardos asked him 

how to unload the weapon in order to “make sure that the gun 

wasn’t going to accidentally go off and injure somebody in our 

area.” He stated that Appellant “was able to explain where the 

mechanisms were to make it safe, and he also was able to 

explain how the barrel popped up to unchamber a round, which I 

wasn’t familiar with.” Officer Kardos said the gun was 

completely unloaded and Appellant stated that he “bought if off 

some guy” and admitted that the gun was his. (N.T., 10/1/15, 

pp. 51-54). 

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 1/21/16, at 1-3. 
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Based on the aforementioned testimony, the trial court denied 

Appellant’s pre-trial suppression motion, and after waiving his right to a jury 

trial, Appellant proceeded to a waiver trial based on stipulated facts. The 

trial court convicted Appellant of the offenses indicated supra and sentenced 

him to an aggregate of two years to four years in prison. Appellant filed a 

timely, counseled post-sentence motion, which the trial court denied 

following a hearing. This timely, counseled appeal followed, and all 

Pa.R.A.P. 1925 requirements have been met. 

Appellant contends the trial court erred in failing to suppress the 

handgun, which was seized by the police from his vehicle. Specifically, 

Appellant contends that, at the moment the police stopped their marked 

police van adjacent to Appellant’s parked vehicle, Appellant was subjected to 

an investigative detention. He further contends the police did not have the 

necessary reasonable suspicion to support this initial detention, i.e., the 

stopping of their police van adjacent to Appellant’s vehicle. Additionally, he 

avers that, to the extent the police stopping the van was a mere encounter, 

the encounter escalated to an investigative detention absent reasonable 

suspicion when the officers approached his parked vehicle.3

____________________________________________

3 Appellant has presented his claims as three separate issues; however,

since the claims are interrelated, we address them in conjunction with one 

another. 
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Initially, we note our standard of review for challenges to the denial of 

a suppression motion is as follows:

Our 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. . . .Where the suppression court's 

factual findings are supported by the record, we are bound by 

these 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 

our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa.Super. 2012) 

(quotations omitted). See Commonwealth v. Benton, 655 A.2d 1030 

(Pa.Super. 1995) (indicating it is within the suppression court’s sole province 

to make credibility determinations). Moreover, our scope of review from a 

suppression ruling is limited to the evidentiary record that was created at 

the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 

(2013). 

Under constitutional jurisprudence, there are three categories of 

interactions between police and a citizen.

The first of these 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 
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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.

Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa.Super. 2015) (quotation 

omitted). 

The question of law initially before us is whether, at the moment the 

police stopped their marked police van adjacent to Appellant’s parked 

vehicle, Appellant was subjected to a mere encounter or an investigative 

detention. 

When assessing whether an interaction escalates from a mere 

encounter to an investigatory detention, we employ the following standard.

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-thecircumstances approach, with no single factor dictating the 

ultimate conclusion as to whether a seizure has occurred.

McAdoo, 46 A.3d at 784 (quotations omitted). See Commonwealth v. 

Collins, 950 A.2d 1041, 1046-47 (Pa.Super. 2008) (en banc) (“To decide 

whether a seizure has occurred, a court must consider all the circumstances 

surrounding the encounter to determine whether the demeanor and conduct 
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of the police would have communicated to a reasonable person that he. . . 

was not free to [leave].”) (quotation omitted)). 

In the present case, the officers’ unrebutted suppression hearing 

testimony indicates that the officers were on patrol during the late 

evening/early morning hours in a marked police van containing several 

police officers. N.T., 10/1/15, at 9. Upon observing Appellant’s vehicle 

parked on the side of the road next to a fire hydrant, Officer Folly, who was 

driving the police van, “pull[ed] up alongside th[e] vehicle that [was] 

parked.” Id. at 15. Officer Folly indicated he did not activate the police 

van’s emergency lights, siren, or loudspeaker. Id. He further indicated he 

parked so that the left side of the police van was four or five feet away from 

the right side of Appellant’s vehicle. Id. at 16. He testified that, to the best 

of his recollection, there was nothing obstructing the front of Appellant’s 

vehicle, and more specifically, there were no other vehicles parked in front 

of Appellant, which would have prevented him from leaving. Id. 

Examining the totality of the individual circumstances presented in this 

case, see Commonwealth v. Au, 615 Pa. 330, 42 A.3d 1002, 1008 (2012), 

we disagree with Appellant that, at the moment the police stopped their 

marked police van adjacent to Appellant’s parked vehicle, Appellant was 

subjected to an investigative detention. Rather, we conclude this was a 

mere encounter from which a reasonable person would feel free to leave. 

See Au, supra (holding that, despite the fact the officer positioned his 
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vehicle to illuminate the appellee’s parked car and then approached with a 

flashlight, a mere encounter occurred since the police officer did not activate 

the emergency lights on his police vehicle, position his vehicle so as to block 

the appellee’s car’s egress, brandish his weapon, or make any overwhelming 

show of force); Collins, supra (holding mere encounter occurred where 

officer parked his patrol car twenty feet from the rear of the appellee’s 

parked vehicle, the officer did not activate the patrol car’s overhead lights, 

and the patrol vehicle did not obstruct the path of the appellee’s vehicle). 

Accordingly, the police stopping of their van adjacent to Appellant’s vehicle 

did not need to be supported by reasonable suspicion.4

We note that we specifically reject Appellant’s argument that the 

number of police officers riding in the van, as well as the fact Appellant was 

parked on a vacant street, requires the conclusion that he was subjected to 

an investigative detention the moment the police stopped their van. Under 

the totality of the circumstances, and particularly absent facts establishing 

Appellant could even see into the van or was aware of the presence of 

several officers at this time,5 we find the number of officers did not escalate 

____________________________________________

4 Accordingly, it is unnecessary to address Appellant’s contention that the 

police did not have reasonable suspicion to support the initial encounter, i.e., 

the stopping of their police van.

5

For instance, the officers’ testimony established the incident occurred when 

it was dark outside. Also, the police van was higher off of the ground than 

Appellant’s vehicle such that the police were “looking down” into Appellant’s 

(Footnote Continued Next Page)
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the mere encounter into an investigative detention. Moreover, the fact 

Appellant was parked in a vacant area is similar to the facts of Au, supra, 

and Collins, supra, where the appellate courts found the initial contact was 

a mere encounter. 

Finally, Appellant contends that, to the extent the police stopping the 

police van was a mere encounter, the encounter escalated to an 

investigative detention absent reasonable suspicion when the officers 

approached his parked vehicle, instructing him to put his hands where they 

could see them. Assuming, arguendo, that Appellant was subjected to an 

investigative detention at this point, we conclude the detention was 

supported by the necessary reasonable suspicion. 

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. 

***

The. . . totality of the circumstances test applies to traffic stops 

or roadside encounters in the same way that it applies to typical 

police encounters. . . .Indeed, as we have observed, roadside 

encounters, between police and suspects are especially 

hazardous, and that danger may arise from the possible 

presence of weapons in the area surrounding a suspect. 

(Footnote Continued) _______________________

vehicle, which was parked to the side of the road under street lights. N.T., 

10/1/15, at 32-33, 36-37.
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Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super. 2011) 

(citations, quotations, and quotation marks omitted). Moreover, we note 

that merely because a suspect’s activity may be consistent with innocent 

behavior does not alone make detention and limited investigation illegal. 

Commonwealth v. White, 516 A.2d 1211 (Pa.Super. 1986). Rather, we 

view the circumstances through the eyes of a trained officer, not an ordinary 

citizen. Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa.Super. 2008) 

(en banc).

In the case sub judice, the officers testified at the suppression hearing 

that they noticed Appellant’s vehicle parked near a fire hydrant on a vacant 

street during the late night/early morning hours. The officers testified the 

area was a well-known, high drug and high crime area. Despite the fact it 

was winter, the officers noticed the vehicle’s windows were rolled down. 

After the officers stopped their police van, they noticed the female 

passenger “looked out at [the police, and] had a very surprised look.” N.T., 

10/1/15, at 37-38. The officers testified she then slouched down in her seat 

and “immediately started hiding an object under the seat.” Id. at 38. 

Officer Kardos testified that, at this point, he was concerned the female 

passenger might “pull out a gun and shoot at us[.]” Id. at 43. 

In light of the totality of the circumstances, we conclude the officers 

had reasonable suspicion to approach Appellant’s parked vehicle and order 

him to put his hands where the police could see them. 
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For all of the aforementioned reasons, we conclude the trial court 

properly denied Appellant’s motion to suppress. Accordingly, we affirm.

Affirmed. 

Judge Dubow joins the memorandum.

PJE Bender concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2016