Com. v. Swavely, S.

• Court: Superior Court of Pennsylvania
• Decided: April 7, 2026
• Docket: 791 MDA 2025
• Status: Unpublished
• Author: Olson

Opinion

J-S42006-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMUEL SWAVELY : : Appellant : No. 791 MDA 2025

Appeal from the Judgment of Sentence Entered May 13, 2025 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003897-2023

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED: APRIL 7, 2026

Appellant, Samuel Swavely, appeals from the May 13, 2025 judgment

of sentence entered in the Court of Common Pleas of Berks County after

Appellant was convicted, in a non-jury trial, of persons not to possess, use,

manufacture, control, sell or transfer firearms (Count 1), firearms not to be

carried without a license (Count 2), and possession of firearm with altered

manufacturer’s number (Count 3).1 The trial court sentenced Appellant to an

aggregate term of five to ten years’ incarceration.2 We affirm. ____________________________________________

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6110.2(a), respectively.

2 On Count 3, the trial court imposed a sentence of five to ten years’ incarceration. On Count 1, the trial court imposed a sentence of two to five years’ incarceration with the sentence set to run concurrently to the sentence imposed on Count 3. On Count 2, the trial court imposed a sentence of 3½ to seven years’ incarceration with the sentence set to run concurrently to the sentence imposed on Count 3. Appellant was found not to be eligible for the J-S42006-25

The record reveals that, on November 6, 2023, Appellant was arrested

and charged with the aforementioned criminal offenses. On February 28,

2024, Appellant filed an omnibus pretrial motion seeking suppression of a

handgun recovered from Appellant’s person at the time he was arrested by

law enforcement. The trial court conducted a hearing on Appellant’s omnibus

motion on April 16, 2024. Based upon the evidence presented at the

suppression hearing, the trial court made the following findings of fact:

1. On November 6, 2023, Detective James Gresh [(“Detective Gresh”)] of the Reading Police Department was conducting video surveillance on an unrelated drug investigation. Detective Gresh has been with the City of Reading Police Department for [seven] years. He was watching the city cameras live at the intersection of [South] 8th Street and Chestnut Street [in Reading, Berks County, Pennsylvania.]

2. Detective Gresh observed [Appellant] walking in the [100] block [of 8th Street wearing a sweatshirt with a hood attached. Detective Gresh] could see the imprint of a handgun in [Appellant’s] sweatshirt pocket. Detective Gresh knew [the individual who appeared in the video] to be [Appellant] based on [] previously [being] shown [Appellant’s] picture as a person of interest[,] although [Appellant] was never charged with any offense. While Detective Gresh was watching the [live] camera [feed], he [searched for Appellant] on [the Pennsylvania Justice Network (“JNET”)] to observe his [driver’s] license photo[graph] and compare it to the person on the live camera [feed]. Detective Gresh also ran [Appellant’s] criminal history, and [Appellant] was previously adjudicated delinquent for aggravated assault. He additionally pulled up the flex database, which says whether or not a person has ____________________________________________

recidivism risk reduction incentive program, state drug treatment, or boot camp. Appellant was ordered to pay $50.00 in costs and awarded 201 days as credit for time served.

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a concealed carry permit. There were no results, meaning [Appellant] did not have a permit to conceal carry [a concealed firearm].

3. Detective Gresh watched [Appellant] on the live[-streaming camera] for a while. Then Detective Gresh, Detective [Timothy] Morris and Sergeant Niebel went to the location to talk to [Appellant. Appellant] was [found] sitting on the stoop at [a residence] on [South] 8th Street and leaning forward. Upon arrival, Detective Gresh and Detective Morris could see the imprint of the handgun in [Appellant’s] front sweatshirt pocket as it was heavy and clearly pressed against the pocket. Detective Morris testified that he knows what a firearm looks like based on training and experience. Detective Morris could see the handgun when he went to detain [Appellant. Appellant] was detained as he did not have a license to carry a concealed firearm. The firearm was a Taurus 9mm handgun with an obliterated serial number.

Trial Court Statement of Findings of Fact and Conclusions of Law, 6/3/24, at

2-3. On June 3, 2024, the trial court denied Appellant’s omnibus motion.

On April 8, 2025, Appellant was convicted, in a non-jury trial, of the

aforementioned criminal offenses. On May 13, 2025, the trial court sentenced

Appellant as detailed supra. This appeal followed.3

Appellant raises the following issue for our review: “Whether the trial

court erred in denying the [omnibus] motion to suppress[?]” Appellant’s Brief

at 7 (extraneous capitalization omitted).

Our appellate standard of review of the denial of a motion to suppress:

____________________________________________

3 Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

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is limited to determining whether the findings of fact are supported by the record and whether the legal conclusions drawn from those facts are in error. In making this determination, this Court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous.

Further, our review is limited to the suppression hearing record. With respect to a suppression court’s factual findings, it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court [] is entitled to believe all, part or none of the evidence presented.

Commonwealth v. Easter, 331 A.3d 675, 679 (Pa. Super. 2025) (ellipsis

omitted), appeal denied, 345 A.3d 1199 (Pa. 2025). “Once a motion to

suppress evidence has been filed, it is the Commonwealth’s burden to prove,

by a preponderance of the evidence, that the challenged evidence was not

obtained in violation of the defendant’s rights.” Commonwealth v. Wallace,

42 A.3d 1040, 1047-1048 (Pa. 2012); see also Pa.R.Crim.P. 581(H) (stating,

“[t]he Commonwealth shall have the burden of going forward with the

evidence and of establishing that the challenged evidence was not obtained in

violation of the defendant’s rights”).

On February 28, 2024, Appellant filed an omnibus pre-trial motion that,

inter alia, sought the suppression of physical evidence recovered from

Appellant’s person during, what Appellant characterized as, an illegal

detention by law enforcement. Omnibus Motion, 2/28/24, at ¶¶7-8. In his

motion, Appellant asserts that his arrest and subsequent seizure of physical

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evidence, namely a handgun, from his person was conducted without

reasonable suspicion and without a search warrant or probable cause. Id. at

¶8. Appellant further asserts that the search of his person, and specifically

the pocket of his sweatshirt, exceeded the parameters of a lawful pat-down,

was conducted without his valid consent or a valid search warrant, and was

not conducted incident to a lawful arrest. Id.

In denying Appellant’s omnibus motion, the trial court held that the

interaction between the police officers and Appellant was a custodial

detention. Trial Court Statement of Findings of Fact and Conclusions of Law,

6/3/24, at 5 ¶8. The trial court further stated that the live[-streaming camera]

footage viewed through the camera system showed Appellant “with the

handgun clearly outlined in the [sweatshirt] pocket” and Appellant was

“observed on camera walking up and down the street with the [hand]gun in

his [sweatshirt pocket].” Id. at 6 ¶14. Based upon its factual findings drawn

from the evidence presented at the suppression hearing, the trial court

concluded that probable cause to arrest Appellant emerged from the

observations made during remote surveillance because “the [police] officers

observed a concealed [hand]gun in [Appellant’s] sweatshirt pocket[, the police

officers] knew who [Appellant] was [and that] he did not have a conceal carry

permit[, and the police officers] were aware [Appellant] was a person not to

possess [a firearm] based on a prior adjudication for aggravated assault.” Id.

at 5 ¶8, 6 ¶14; see also Trial Court Opinion, 8/8/25, at 4-5.

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The Fourth Amendment to the United States Constitution, made

applicable to the states through the Fourteenth Amendment, and Article I,

Section 8 of the Pennsylvania Constitution protect a person from unlawful

searches and seizures.4 It is well-established that

Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police. 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 supported by a reasonable suspicion[. An investigative detention] 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.

4 The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. The Pennsylvania Constitution provides,

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

PA CONST. art. I, § 8.

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Commonwealth v. Ellis, 662 A.2d 1043, 1047-1048 (Pa. 1995) (citations

and footnote omitted); see also Commonwealth v. Adams, 205 A.3d 1195,

1199-1200 (Pa. 2019).

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. A custodial detention requires that the police have probable cause to believe that the person so detained has committed or is committing a crime.

Commonwealth v. Dix, 207 A.3d 383, 388 (Pa. Super. 2019) (citation,

quotation marks, and brackets omitted), appeal denied, 217 A.3d 790 (Pa.

2019); see also Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa.

2007) (stating that, “[t]he police have probable cause where the facts and

circumstances within the [police] officer’s knowledge are sufficient to warrant

a person of reasonable caution in the belief that an offense has been or is

being committed” (citation and original quotation marks omitted)). “In

determining whether probable cause exists, we apply a totality of the

circumstances test.” Commonwealth v. Burno, 154 A.3d 764, 781 (Pa.

2017). “The question we ask is not whether the officer’s belief was correct or

more likely true than false. Rather, we require only a probability, and not a

prima facie showing, of criminal activity.” Id. (citations and original quotation

marks omitted).

At the suppression hearing, Detective Gresh testified that, on November

6, 2023, he was conducting long-range surveillance of the intersection of

South 8th Street and Chestnut Street through use of the city’s safety unit

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camera system. N.T., 4/16/24, at 10. Detective Gresh explained that he was

conducting the surveillance operation as part of a drug investigation, which

was unrelated to Appellant. Id. While monitoring the live-stream camera

footage, Detective Gresh observed Appellant, who he recognized. Id. at 11,

13. Detective Gresh stated that he became interested in Appellant’s presence

in the area because he observed “the outline of a handgun in [Appellant’s]

front sweatshirt pocket.” Id. at 11, 20-21. Through a search of various

databases available to law enforcement, Detective Gresh was able to confirm

Appellant’s identity and the fact that he was not eligible to possess or carry a

concealed firearm. Id. at 13-16. Based upon his observations, Detective

Gresh proceeded to Appellant’s location with Detective Morris and Sergeant

Niebel. Id. at 15, 27.

Detective Gresh stated that he was sitting in the front passenger seat

of an unmarked police vehicle when the three law enforcement officers located

Appellant, who was sitting on the entrance steps of a residence in the 100

block of South 8th Street. Id. at 15, 28. Detective Gresh testified that, from

his position in the police vehicle, he was able to confirm the outline of a

handgun in the front pocket of Appellant’s sweatshirt that he previously

observed in the live video footage. Id. at 29, 33.

Detective Morris testified that he was the driver of the police vehicle.

Id. at 46. Detective Morris stated that, upon locating Appellant, “I stopped

my vehicle, opened my door, approached [Appellant], said, keep your hands

out of your pockets. Keep your hands out of your pockets.” Id. at 48.

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Detective Morris agreed that he was “yelling” his commands to Appellant to

keep his hands out of his pockets. Id. at 52. Appellant further confirmed

that, after exiting the police vehicle, the police officer was yelling for him to

put his hands in the air. Id. at 56.

As he approached Appellant, Detective Morris observed a “heavy object”

in the front pocket of Appellant’s sweatshirt. Id. at 48-49, 53. Detective

Morris was able to identify the “heavy object” as a firearm based upon his law

enforcement training and his military service. Id. at 50. Detective Morris

testified that “[w]hen I got up to [Appellant], I went to his left. I grabbed his

wrist to detain him. When I did so, I looked down and you could see into the

[sweatshirt] pocket that there was a handgun inside of it.” Id. at 49, 53.

Detective Morris stated that he observed the handgun in Appellant’s pocket

while Appellant was still seated and before the police officers “pull[ed] him to

his feet[.]” Id. at 53. Detective Morris further explained that “Sergeant

Niebel and [I] were the [police officers] who grabbed [Appellant’s] arms and

placed him in handcuffs.” Id. at 50. Detective Morris informed Detective

Gresh that he observed a handgun in the front pocket of Appellant’s

sweatshirt, and Detective Gresh seized the firearm. Id. Appellant testified

that he did have a handgun in his sweatshirt pocket. Id. at 58-59.

We concur with the trial court, and the record supports, that the police

officers had probable cause to believe Appellant was committing a crime at

the time Appellant was arrested or became subject to a custodial detention.

Based upon the totality of the circumstances, namely the observations by

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Detectives Gresh and Morris prior to Appellant’s arrest that he had a firearm

located in the front pocket of his sweatshirt and the understanding that

Appellant was not authorized to carry a concealed firearm, the police officers

had probable cause, based upon specific and articulable facts, that Appellant

was committing a criminal offense. Therefore, we discern no error of law or

abuse of discretion in the trial court’s order denying Appellant’s omnibus

motion to suppress the physical evidence recovered from his person.

Judgment of sentence affirmed.

Judge King joins this Memorandum.

Judge Lane concurs in the result.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/07/2026

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