J-A27034-18

2019 PA Super 102

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW DIX 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2157 EDA 2017

Appeal from the Judgment of Sentence January 30, 2017

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

No(s): CP-51-CR-0001841-2016

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.: FILED APRIL 1, 2019

Matthew Dix appeals from the judgment of sentence entered following 

his bench-trial convictions for possession of a controlled substance with intent 

to deliver (“PWID”) and possessing instruments of crime (“PIC”).1 Dix 

challenges the denial of his suppression motion and the sufficiency of the 

evidence. We affirm.

Dix was arrested on February 2, 2016, following a police stop outside 

his vehicle, where the police recovered a hatchet from Dix’s waistband and 

crack cocaine from the floor near the vehicle’s driver seat. Dix filed a motion 

to suppress the hatchet and crack cocaine, arguing the police officers detained 

him without probable cause and lacked reasonable suspicion to stop him.

The trial court held a hearing on the motion to suppress. At the hearing,

Police Officer Marvin Ruley and Sergeant Dennis Johnson testified as follows. 

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1 35 P.S. § 780-113(a)(3) and 18 Pa.C.S.A. § 907(a).
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On February 2, 2016, Officer Ruley and Sergeant Johnson were on patrol in 

plain clothes and in an unmarked police car near the 5100 block of 

Westminster Avenue in Philadelphia, which is a high crime area. N.T., 

10/28/16, at 7, 13-14, 23. While stopped at a red light, the police officers saw 

Dix park his truck, exit the truck, and reach toward the floor of the truck, 

under the driver’s seat. Id. at 8, 23-24. Dix then lifted his shirt and placed a 

large object into the front part of his waistband. Id. at 8, 24. He closed the 

car door and proceeded toward a corner store. Id. at 8, 24.

The police officers believed that Dix had just placed a firearm in his 

waistband and therefore parked their car and walked toward Dix. Id. at 8, 24. 

Dix saw the officers, turned, walked back to his truck, and opened the door. 

Id. at 8, 24. Sergeant Johnson approached the driver’s side of the truck and 

Officer Ruley approached the passenger side, where a second man was sitting.

Id. at 8, 24. The officers observed Dix reach down toward the floor of the 

truck, as though placing items underneath the driver’s seat. Id. at 8, 17, 26. 

Sergeant Johnson drew his gun, told Dix to place his hands on the truck, and 

frisked Dix’s waistband area, where he discovered a hatchet. Id. at 9, 25.

Officer Ruley walked to the passenger side of the truck and “probably” 

had his gun drawn. Id. at 9, 17. From his position on the sidewalk, Officer 

Ruley was able to see a clear plastic bag filled with what he recognized as 

narcotics. Id. at 9; N.T., 12/5/16, at 7, 11. The bag was on the floor of the 

truck in front of the driver’s seat. Id. It was later determined that the bag 

contained 55 packets of crack cocaine. N.T., 10/28/16, at 9.
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The trial court denied the motion,

2 stating:

It’s a unique move when an officer sees someone on the 

street side from behind. And they were quite clear about 

that. You know, what they saw was that they saw this 

defendant pulling up his shirt and looked like he was 

secreting something in his waistband. And observing that, 

they had an obligation as officers to stop and investigate 

because of the area, as a high-crime, high-drug area. We all 

know it goes hand and hand with drugs and weapons.

So they approached the vehicle, albeit with their weapons 

out because they think he’s – giving the motion toward the 

store and his observation. One of the officers testified he 

saw him in back; the other did not. And he goes back and 

he starts in for the truck.

Looking at this picture, you may think it’s hard, as a lay 

person to look at that packet and to recognize what it is, but 

an officer with 20 years[’] experience and all these years of 

narcotics, clearly, can identify what and how drugs are 

packaged, more readily to their knowledge than to you or I.

So given the fact that they see this movement, which gives 

them legitimate belief that this defendant is armed and 

dangerous and approach the vehicle, the one officer is 

handling the defendant with the frisk for a weapon as the 

other approached him on an angle. As he said, on an angle, 

where he’s standing above the vehicle, now looking in, his 

recognition of the packaged narcotics seem to be 

reasonable.

For all those reasons, I think the officers followed the law. 

The motion to suppress is denied.

N.T., 12/5/16, at 25-26.

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2 The trial court described the interaction as a car stop. We conclude, however, 

that this was not a car stop, as the police officers stopped Dix due to his 

actions while outside of his vehicle.
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Dix proceeded to a bench trial. The Commonwealth admitted all nonhearsay testimony from the motion to suppress. In addition, Officer Ruley 

testified that the vehicle’s passenger was using his telephone, and did not look 

in the officer’s direction “until [the officer] got to the door.” Id. at 35. Prior to 

observing the drugs on the floor, Officer Ruley did not see the passenger make 

any movements. Id. at 37, 40.

Dix and the Commonwealth entered the following stipulations: (1) 

whoever possessed the narcotics did so with the intent to deliver the narcotics,

id. at 41; and (2) the passenger has two convictions for PWID, one from 2009 

and one from 2015, and that he had been sentenced on the 2015 PWID 

conviction on December 29, 2015. id. at 43.

The trial court found Dix guilty of PWID and PIC. The trial court 

sentenced Dix to two to four years’ incarceration and two years’ probation for 

the PWID conviction, and imposed no further penalty for the PIC conviction. 

Dix filed post-sentence motions, which the trial court denied. Dix then filed a 

timely notice of appeal.

Dix raises the following issues on appeal:

(1) Did the trial court err in denying the suppression motion 

where the officers had neither probable cause nor 

reasonable suspicion when they drew their weapons on [] 

Dix?

(2) Did the trial court err in finding the evidence sufficient 

to convict [] Dix of the possession charges where there was 

reasonable doubt as to his constructive possession of a bag 

found in a truck next to another person who had recently 

been convicted of [PWID]?
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(3) Did the court err in finding the evidence sufficient to 

convict [] Dix of [PIC] where the Commonwealth did not 

present a case at trial for that charge?

Dix’s Br. at 3.

Dix first argues the trial court erred in denying his motion to suppress. 

He argues that a full custodial detention occurred when the police officers 

approached Dix with their guns drawn and forced him to place his hands on 

the roof of his truck. He argues the custodial detention was illegal because the 

police officers lacked probable cause. He further argues that even if the stop 

was an investigative detention, the police officers lacked reasonable suspicion 

to conduct the stop, claiming that they did not have specific and articulable 

facts that Dix was engaged in criminal activity or that he was armed and 

dangerous. He maintains that his presence in a high crime area and retreat 

from officers, and that the officers observed Dix put an unidentified object in 

his waistband, did not provide reasonable suspicion of ongoing criminal 

activity. 

Our standard of review on appeal of the denial of a motion to suppress 

is limited to determining “whether the record supports the suppression court’s 

factual findings and the legitimacy of the inferences and legal conclusions 

drawn from those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041 

(Pa.Super. 2011) (quoting Commonwealth v. Lohr, 715 A.2d 459, 461 

(Pa.Super. 1998)). If the record supports the factual findings of the trial court, 

we reverse “only if there is an error in the legal conclusions drawn from those 

factual findings.” Id. (citation omitted).
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“The law recognizes three distinct levels of interaction between police 

officers and citizens: (1) a mere encounter; (2) an investigative detention, 

often described as a Terry[3] stop . . . ; and (3) a custodial detention.”

Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa.Super. 2017). 

“A mere encounter can be any formal or informal interaction between 

an officer and a citizen. The hallmark of this interaction is that it carries no 

official compulsion to stop or respond.” Id. (quoting Commonwealth v. 

DeHart, 745 A.2d 633, 636 (Pa.Super. 2000). A mere encounter does not 

need to be justified by any level of police suspicion. Id.

“[A]n ‘investigative detention’ . . . carries an official compulsion to stop 

and respond.” Id. (quoting DeHart, 745 A.2d at 636). Because an 

investigative detention “has elements of official compulsion it requires 

reasonable suspicion of unlawful activity.” Id. (quoting DeHart, 745 A.2d at 

636). In addition, although “reasonable suspicion of unlawful activity is 

sufficient to justify a forcible stop, it does not necessarily justify a frisk for 

weapons.” Id. Rather, a weapons frisk is appropriate, “[o]nly when the officer 

reasonably believes the suspect may be armed and dangerous.” Id.

“[A] custodial detention occurs when the nature, duration and conditions 

of an investigative detention become so coercive as to be, practically 

speaking, the functional equivalent of an arrest.” Id. (quoting DeHart, 745 

A.2d at 636). A custodial detention “requires that the police have probable 

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3 Terry v. Ohio, 392 U.S. 1 (1968).
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cause to believe that the person so detained has committed or is committing 

a crime.” Id.

The officers’ drawing their guns when they stopped Dix did not render 

the stop a custodial detention. In Commonwealth v. Johnson, 849 A.2d 

1236, 1237 (Pa.Super. 2004), the police received a tip from a confidential 

informant that a “young, stocky, African-American male would be delivering 

marijuana” to a specific car at a specific location and that the delivery would 

occur between 6:00 p.m. and 10:00 p.m. When the officers observed a man 

fitting the description arrive at the location, they approached the car with their 

“guns drawn but at their sides.” Id. We concluded that this was an 

investigative detention, not a custodial detention. Id. at 1238. We also found 

that the police had reasonable suspicion that criminal activity was afoot, as a 

man fitting the confidential informant’s description arrived at the described 

location in a car similar to that described by the confidential informant. Id.

We further concluded the investigative detention “was not made improper 

because the officers drew their guns.” Id. We noted the officers did not point 

the guns at the defendant, and noted that “[o]ur law enforcement officers are 

not required to take any more risks than those already inherent in stopping a 

drug suspect, particularly one in an automobile.” Id. at 1239.

The cases cited by Dix to support his claim that the stop was a custodial 

detention because the officers drew their guns are distinguishable. For 

example, in Commonwealth v. White, 669 A.2d 896, 897, 901 (Pa. 1995), 

the Pennsylvania Supreme Court concluded that the defendant was under 
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arrest before the police officers searched his car, where the police officers had 

search warrants for defendant’s person and residence, but not his vehicle, and 

where six to eight officers converged on the defendant’s car and took him into 

custody. The Court noted that “[h]ad he attempted to leave, it seems likely 

that he would have been looking down the barrel of several guns.” Id. at 901. 

Unlike in White, only two officers approached Dix with their guns drawn. It 

cannot be said that the officers “converged” on him, or that he was “looking 

down the barrel of several guns.”

Further, in Commonwealth v. Albert, we observed that the “display 

of a weapon by an officer is an example of coercive police conduct.” 767 A.2d 

549, 552 (Pa.Super. 2001). However, we held that when the officer in that 

case approached the defendant, with his gun drawn, and yelled for the 

defendant to stop, an investigatory detention, not a custodial detention,

occurred. Id. 

Here, the officers approached Dix with their guns drawn. Nonetheless, 

the totality of the circumstances do not render the detention the functional 

equivalent of an arrest. The officers stopped the defendant and conducted a 

very brief pat-down search. The stop constituted an investigative detention.

Johnson, 849 A.2d at 1237-39; Albert, 767 A.2d at 552.

Because we conclude that this was an investigative detention, we must 

next determine whether the trial court erred in concluding the police officers

had reasonable suspicion that Dix was engaging in criminal activity to support 
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the stop, and reasonable suspicion that Dix was armed to support the frisk.

See Mackey, 177 A.3d at 227.

The trial court concluded the officers had an obligation to investigate 

when they observed Dix, in a high-crime and high-drug area, secreting a large 

item in his waistband. We agree.

Based on the facts of this encounter, the police officers had reasonable 

suspicion for both the stop and the weapon search. First, the stop was 

supported by reasonable suspicion. The police officers observed Dix exit a car 

in a high crime area, reach toward the floor of the car, place a large item in 

his waistband, and proceed toward a corner store. When Dix observed the 

officers, rather than continuing to the corner store, Dix immediately retreated 

to the car and again made motions as though placing an item on the floor of 

the truck. Such observations provided reasonable suspicion that Dix was in 

possession of contraband and supported an investigatory detention. See

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

reasonable suspicion of criminal activity and that defendant was armed and

potentially dangerous where, at 2:00 a.m. in a high crime area, police officers 

found defendant and another person standing over an unconscious man and 

officer noticed an object weighing down defendant’s jacket pocket). 

Further, the police officers reasonably believed that the large item 

placed in Dix’s waistband was a weapon, which provided reasonable suspicion 

to support a frisk of Dix’s person. Commonwealth v. Foglia, 979 A.2d 357,

361 (Pa.Super. 2009) (en banc) (protective search supported by reasonable 
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suspicion where police received anonymous tip that a man dressed in black 

had weapon, police observed a man dressed in black engage in evasive 

behavior by looking back at police and walking away and touch his waist area, 

where the officers knew people often conceal weapons).4 We therefore 

conclude the trial court did not err in denying Dix’s motion to suppress. 

Dix next challenges the sufficiency of the evidence supporting his PWID 

and PIC convictions. 

When reviewing a sufficiency of the evidence claim, we must determine 

whether, when viewed in the light most favorable to the verdict winner, the 

evidence at trial and all reasonable inferences therefrom are sufficient for the 

trier of fact to find that each element of the crime charged is established 

beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544, 

559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden 

of proving every element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence.” Id. (quoting Commonwealth v. 

Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).

Dix maintains the Commonwealth failed to establish constructive 

possession, arguing his passenger possessed the narcotics. He claims there 

____________________________________________

4 On appeal, Dix challenges the legality of the stop and the search of his 

person. As to the discovery of the narcotics, he argues that the drugs are 

inadmissible because the seizure was not proper. Dix’s Br. at 7. He does not

challenge the finding that the drugs were found in plain view and, therefore, 

does not argue the drugs were inadmissible even if the stop was improper. 

Dix’s Br. at 7.
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was no evidence Dix had control over the area in which the drugs were found 

and his passenger had recently been convicted of PWID. 

To sustain a conviction for possession of a controlled substance with 

intent to deliver, the Commonwealth must establish the defendant knowingly 

or intentionally possessed a controlled substance without being properly 

registered to do so, with the intent to manufacture, distribute, or deliver it. 

See 35 P.S. § 780–113(a)(30); Commonwealth v. Brown, 48 A.3d 426, 

430 (Pa.Super. 2012).

Because Dix was not in physical possession of the narcotics, the 

Commonwealth was required to establish Dix had constructive possession. 

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). To 

establish constructive possession of contraband, the Commonwealth must 

show that the defendant has “conscious dominion” over the contraband, that 

is, “the power to control the contraband and the intent to exercise that 

control.” Brown, 48 A.3d at 430 (quoting Commonwealth v. Parker, 847 

A.2d 745, 750 (Pa.Super. 2004)). The “intent to maintain a conscious 

dominion may be inferred from the totality of the circumstances,” and 

“constructive possession may be found in one or more actors where the item 

in issue is in an area of joint control and equal access.” Commonwealth v. 

Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (citations and brackets omitted).

Here, Dix drove the vehicle in which the narcotics were recovered. 

Further, the police officers observed Dix retrieve something from under the 

driver’s seat before exiting the vehicle and again saw him attempt to hide 
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something under the driver’s seat when he returned to the vehicle. The police 

officer recovered the narcotics from the floor in front of the driver’s seat. This 

evidence is sufficient to support a finding Dix constructively possessed, that 

is, had conscious dominion over, the narcotics. See Hopkins, 67 A.3d at 821 

(finding sufficient evidence that defendant constructively possessed drugs, 

even though co-defendant claimed possession, where defendant drove his car

toward a known drug user and, when police approached, police officer 

observed defendant attempt to hide drugs in the space between driver’s seat 

and center console, and found defendant with two cell phones and $361 in 

cash on his person); Commonwealth v. Thompson, 779 A.2d 1195, 1199-

1200 (Pa.Super. 2001) (finding sufficient evidence of constructive possession 

where drugs found in crack of back seat of car and another passenger testified 

she observed defendant moving his hands from his pockets toward crack in 

back seat during traffic stop). 

Dix next maintains the Commonwealth failed to establish the conviction 

for PIC because it did not prove that Dix intended to employ the hatchet for 

criminal purposes. 

To establish a conviction for PIC, the Commonwealth must establish the 

defendant possessed “any instrument of crime with intent to employ it 

criminally.” 18 Pa.C.S.A. § 907(a). “[I]ntent can generally be inferred from 

the surrounding circumstances.” In re A.C., 763 A.2d 889, 891 (Pa.Super. 

2000). Intent to employ a weapon criminally “cannot be inferred from mere 

possession of the weapon.” Id.
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Here, Dix was found with a hatchet in his waistband and was found to 

possess narcotics that he intended to illegally deliver to others. Further, when 

he first exited the vehicle, the police observed him take a large item from the 

same spot in which they later discovered the narcotics, and place it in his 

waistband. This evidence supports a finding that Dix possessed the hatchet 

with the intent to employ it criminally. Commonwealth v. Weston, 749 A.2d 

458, 462 (Pa. 2000) (finding sufficient evidence of intent to employ firearm 

illegally where defendant armed himself with gun before confronting victim).

Judgment of sentence affirmed.

Judge Stabile joins the opinion.

Judge Bowes concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/19