J-S30010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DYREL STEELE

Appellee No. 1080 EDA 2014

Appeal from the Order Entered March 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014122-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

entered in the Philadelphia County Court of Common Pleas, granting the 

motion of Appellee, Dyrel Steele, to suppress evidence obtained following his 

arrest for drug offenses.1 We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

____________________________________________

1

Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in 

its notice of appeal that the suppression order substantially handicapped or 

terminated the prosecution. Accordingly, this appeal is properly before us 

for review. See Commonwealth v. James, 620 Pa. 465, 69 A.3d 180 

(2013) (reiterating Commonwealth has absolute right of appeal from 

interlocutory suppression order, when Commonwealth certifies in good faith 

that suppression order has terminated or substantially handicapped 

prosecution); Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 

(2003) (stating Rule 311(d) applies to pretrial ruling that results in 

suppression, preclusion or exclusion of Commonwealth’s evidence). 
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The Commonwealth presented one witness, Scott 

Schweizer, a police officer of sixteen (16) years’ 

experience with eight years on the Narcotics Strike Force, 

now working in the 24th District. He had over 100 

narcotics arrests and extensive narcotics training in the 

care and packaging of drugs. 

Officer Schweizer testified that on August 3, 2012, at 6:45 

p.m., in the area of 700 East Clearfield Street, he and his 

partner, Police Officer Pross, were in full uniform traveling 

in an unmarked police vehicle. When the police vehicle 

stopped at a red light, Officer Schweizer saw [Appellee] in 

the front passenger seat of a parked car with a female 

driver sitting behind the wheel. Through the windshield of 

this parked vehicle, Officer Schweizer saw [Appellee] 

maneuver an unknown object in his hands that “appeared 

to be something the size of a tennis ball or racquetball.” 

However, Officer Schweizer stated he could not actually 

see what was in [Appellee’s] hand. The officer believed he 

and [Appellee] made eye contact and [Appellee] then tried 

to conceal himself and the contents of his hand. 

At this point, the police officers pulled over and 

approached [Appellee’s] vehicle. Police Officer Schweizer 

made contact with [Appellee] and requested [Appellee] 

lower his window. [Appellee] complied and inquired, 

“What the fuck? What the fuck?” Officer Schweizer 

described [Appellee’s] conduct as “fidgety” and “excited” 

indicating he was looking around, leaning forward with his 

hand, nervous, and sweaty. Officer Schweizer testified he 

saw a bulge in [Appellee’s] right pocket that again looked 

like [a] tennis or racquetball, which he believed to be 

narcotics, as well as a black plastic bag on the floor of the 

vehicle. 

The police officer commanded [Appellee] out of the car. A 

pat down was performed and Officer Schweizer felt what 

he believed to be narcotics. Immediately thereafter, 

Officer Schweizer recovered the black plastic bag from the 

floorboard of the car which also contained narcotics. 

Officer Schweizer further testified that at no point did he 

believe [Appellee] had a weapon. 

(Suppression Court Opinion, filed February 4, 2015, at 1-2) (internal 
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citations to the record omitted). 

On December 4, 2012, the Commonwealth filed a criminal information 

charging Appellee with possession of a controlled substance and possession 

of a controlled substance with intent to deliver. On January 24, 2013, 

Appellee filed a suppression motion, asserting Officer Schweizer “stopped 

[Appellee], while [Appellee] was lawfully sitting as a passenger in a parked 

car.” (Suppression Motion, filed 1/24/13, at 1). Appellee argued Officer 

Schweizer conducted an illegal seizure and search, “and the ultimate 

recovery of the narcotics was done in violation of [Appellee’s] constitutional 

rights.” (Id.) Appellee concluded the court should suppress all evidence 

obtained as result of the result of the illegalities. The court conducted a 

suppression hearing on March 10, 2014. Immediately following the hearing, 

the court granted Appellee’s suppression motion. 

The Commonwealth timely filed a notice of appeal on April 9, 2014. 

That same day, the Commonwealth filed a concise statement of errors 

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). 

The Commonwealth raises one issue for our review: 

WHERE AN EXPERIENCED OFFICER IN AN AREA KNOWN 

FOR DRUG TRAFFICKING APPROACHED [APPELLEE], WHO 

WAS IN THE PASSENGER SEAT OF A PARKED, RUNNING 

CAR, LOOKING AT AN OBJECT IN HIS HAND THAT THE 

OFFICER COULD NOT SEE; [APPELLEE] MADE EYE 

CONTACT WITH THE OFFICER AND THEN SLUMPED DOWN 

IN HIS SEAT AND TRIED TO CONCEAL THE OBJECT IN HIS 

HAND; THE OFFICER SAW A TENNIS BALL SIZED BULGE 

IN [APPELLEE’S] POCKET; [APPELLEE] WAS SWEATING, 

NERVOUS, MOVING AROUND IN HIS SEAT, AND REACHED 
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FORWARD SEVERAL TIMES TOWARDS A BLACK PLASTIC 

BAG ON THE FLOOR; AND [APPELLEE] CURSED AT THE 

OFFICER, DID THE [SUPPRESSION] COURT ERR IN 

HOLDING THAT THE OFFICER LACKED REASONABLE 

SUSPICION TO STOP AND FRISK [APPELLEE] FOR 

WEAPONS? 

(Commonwealth’s Brief at 4). 

When the Commonwealth appeals from a suppression order, the 

relevant scope and standard of review are: 

[We] consider only the evidence from the defendant’s 

witnesses together with the evidence of the prosecution 

that, when read in the context of the entire record, 

remains uncontradicted. As long as there is some 

evidence to support them, we are bound by the 

suppression court’s findings of fact. Most importantly, we 

are not at liberty to reject a finding of fact which is based 

on credibility. 

The suppression court’s conclusions of law, however, are 

not binding on an appellate court, whose duty is to 

determine if the suppression court properly applied the law 

to the facts. 

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011), 

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and 

quotation marks omitted). 

On appeal, the Commonwealth contends Officer Schweizer, an 

experienced narcotics officer, observed Appellee inside a parked vehicle in a 

high-crime area. The Commonwealth asserts Appellee slouched in his seat 

and attempted to hide from the officer after the two made eye contact. The 

Commonwealth claims Appellee appeared nervous, he fidgeted and cursed 

while interacting with Officer Schweizer, and Appellee repeatedly reached 
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toward the plastic bag on the floor in front of him. Under these 

circumstances, the Commonwealth argues Officer Schweizer possessed 

reasonable suspicion that Appellee was engaged in criminal activity. 

Further, the Commonwealth submits Appellee’s suspicious behavior justified 

the officer’s decision to conduct a pat-down search for weapons. The 

Commonwealth concludes the court should have denied Appellee’s 

suppression motion on these bases. We disagree. 

Contacts between the police and citizenry fall within three general 

classifications: 

The first [level of interaction] 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 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. 

Goldsborough, supra at 305 (quoting Commonwealth v. Bryant, 866 

A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa. 668, 876 A.2d 

392 (2005)). 

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

an officer and a citizen, but will normally be an inquiry by the officer of a 

citizen. The hallmark of this interaction is that it carries no official 

compulsion to stop or respond.” Commonwealth v. Jones, 874 A.2d 108, 

116 (Pa.Super. 2005) (quoting Commonwealth v. DeHart, 745 A.2d 633, 
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636 (Pa.Super. 2000)). 

In contrast, an investigative detention, by implication, 

carries an official compulsion to stop and respond, but the 

detention is temporary, unless it results in the formation of 

probable cause for arrest, and does not possess the 

coercive conditions consistent with a formal arrest. 

* * * 

An investigative detention, unlike a mere encounter, 

constitutes a seizure of a person and thus activates the 

protections of Article 1, Section 8 of the Pennsylvania 

Constitution. To institute an investigative detention, an 

officer must have at least a reasonable suspicion that 

criminal activity is afoot. 

* * * 

Reasonable suspicion exists only where the officer is able 

to articulate specific observations which, in conjunction 

with reasonable inferences derived from those 

observations, led him reasonably to conclude, in light of 

his experience, that criminal activity was afoot and that 

the person he stopped was involved in that activity. 

Therefore, the fundamental inquiry of a reviewing court 

must be an objective one, namely, whether the facts 

available to the officer at the moment of intrusion warrant 

a [person] of reasonable caution in the belief that the 

action taken was appropriate. 

Jones, supra at 116 (internal citations omitted). 

Also, 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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal 

denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v. 

Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747, 
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902 A.2d 1239 (2006)) (internal citations and quotation marks omitted). 

“In these matters, our initial inquiry focuses on whether the individual 

in question has been legally seized.” Commonwealth v. Coleman, 19 A.3d 

1111, 1116 (Pa.Super. 2011). 

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-the-circumstances 

approach, with no single factor dictating the ultimate 

conclusion as to whether a seizure has occurred. 

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012), appeal 

denied, 616 Pa. 657, 50 A.3d 124 (2012) (quoting Coleman, supra at 

1116). “If, during the course of a valid investigatory stop, an officer 

observes unusual and suspicious conduct on the part of the individual which 

leads him 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.2d 1235, 

1239 (Pa.Super. 2003). 

Instantly, on August 3, 2012, Officer Schweizer and his partner were 

on patrol near 700 East Clearfield Street. The officers were in full uniform, 

riding in an unmarked car. Officer Schweizer characterized the area as a 

“residential neighborhood” with “three, four, known drug corners....” (See
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N.T. Suppression Hearing, 3/10/14, at 7-8.) Officer Schweizer estimated he 

had made one hundred arrests for narcotics offenses in the area over a 

sixteen-year period. 

At approximately 6:45 p.m., Officer Schweizer first observed Appellee, 

who was in the passenger’s seat of a parked vehicle. An unidentified female 

was in the driver’s seat. Officer Schweizer described Appellee’s behavior as 

follows: 

I was making my observations through my side window, 

which isn’t tinted. Looking into the vehicle that [Appellee] 

was in through the front windshield, I observed [that 

Appellee] appear[ed] to be examining something in his 

hand, looking at it. I could see him maneuver his body to 

[place] that item into his pocket. Again, we were still in 

traffic. 

At this point, I made eye contact with [Appellee], meaning 

we were looking at each other. At that point, [Appellee] 

started to, in my opinion, conceal himself. He started to 

slouch down and maneuver in the passenger’s seat to a 

point where at one time I completely couldn’t see his body 

whatsoever. 

(Id. at 9-10). Officer Schweizer elaborated on the object in Appellee’s hand, 

explaining, “I couldn’t see fully what was in his hand, but the way his hand 

was opened, it appeared...to be something of the size of a tennis ball....” 

(Id. at 10). 

Officer Schweizer stated Appellee’s “mannerisms after we made eye 

contact” raised his suspicions. (Id. at 16). Specifically, Appellee’s attempt 

to conceal himself troubled the officer: 

[Appellee] first leaned...like slouching down. Like you 
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would go down a sliding board. And then he came back up 

and then fully concealing himself, leaning toward the 

driver’s side where I couldn’t see him anymore. 

(Id.) Consequently, Officer Schweizer and his partner exited their patrol car 

and approached Appellee’s vehicle. Officer Schweizer went to the 

passenger’s side and his partner stayed on the driver’s side. Officer 

Schweizer asked Appellee to roll down the passenger’s side window. (Id. at 

18). 

Officer Schweizer emphasized that Appellee’s act of slouching in his 

seat aroused the officer’s suspicion, which prompted his further 

investigation. Appellee was effectively seized when the officers stood 

directly outside his vehicle and asked him to roll down the window. Under 

these circumstances, a reasonable person would not think he was free to 

leave the scene. See Downey, supra. Therefore, Officer Schweizer’s 

interaction with Appellee constituted a “seizure” that required reasonable 

suspicion. Id. 

Here, the suppression court correctly determined: 

There is no evidence of a traffic violation, or vehicle stop, 

only Officer Schweizer’s observations of [Appellee’s] 

behavior. Based on Officer Schweizer’s observations, at 

6:45 p.m. in the summer, [Appellee] maneuvered 

something in his hands that looked like a [ball], and then 

upon making eye contact with [the officer], slouched down 

in his seat. This combination of actions [does] not give 

rise to reasonable suspicion that there was criminal activity 

afoot. Officer Schweizer had no reason to stop 

[Appellee]...and...anything [discovered] after should be 

suppressed as fruit of the poisonous tree. 
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(See Suppression Court Opinion at 4.) We agree and emphasize Officer 

Schweizer’s testimony lacked any specific observations to link the object in 

Appellee’s hand, or his slouching in his seat, to any type of criminal activity. 

Officer Schweizer could not identify the object or even see its color. (See

N.T. Suppression Hearing at 17.) The record supports the court’s decision 

that the officer lacked reasonable suspicion under these circumstances. See 

Jones, supra. Accordingly, we affirm the order granting the suppression 

motion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015