Superior Court 7/11/08 -

COMMONWEALTH OF PENNSYLVANIA v. SAMELL MACK
No. 58 EDA 2007 2008 PA Super 153 Atlantic: n/a Filed: 7/11/2008
Appeal from the Order Entered November 22, 2006, in the Court of Common Pleas of Philadelphia County Criminal Division at No. 0603-0620 1/1
Before: FORD ELLIOTT, P.J., PANELLA AND KELLY, JJ.
Opinion by: FORD ELLIOT, P.J.
The Commonwealth appeals from the order granting Samell Mack’s (“Mack”) omnibus pre-trial motion to suppress evidence. Upon review, we reverse and remand for trial.

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¶ 6 The Commonwealth raises one issue for our consideration: whether
the trial court erred in granting the suppression motion as Officer Morris was
justified in conducting a limited safety-related frisk of Mack’s person. The
Commonwealth argues the officer articulated he had reasonable suspicion to
suspect that Mack may be armed or engaged in criminal activity.
(Commonwealth’s brief at 7.)
¶ 7 When the Commonwealth appeals from a suppression order, we follow
a clearly defined standard of review and 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.
Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super. 2008.). We must
first determine whether the record supports the factual findings of the
suppression court and then determine the reasonableness of the inferences
and legal conclusions drawn from those findings. Id. In appeals where
there is no meaningful dispute of fact, as in the case sub judice, our duty is
to determine whether the suppression court properly applied the law to the
facts of the case. Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802,
807 (2006).......

.........¶ 15 Based on the facts found by the suppression court, we find that the
totality of the circumstances led Officer Morris to reasonably suspect that
Mack may be armed. Mack’s reaching movements in the vehicle while the
officer approached, in conjunction with the time of day, Mack’s nervousness
and lack of proper identification, could lead Officer Morris to reasonably
conclude that his safety was in jeopardy. As such, Officer Morris was
justified in subjecting Mack to a Terry frisk in order to ensure his own safety
and the safety of his fellow officer. See Commonwealth v. Mesa, 683
A.2d 643, 646 (Pa.Super. 1996) (finding officer had articulable suspicion the
appellant might be armed and dangerous when he observed the appellant
“moving around a great deal” in the passenger seat); Commonwealth v.
Morris, 619 A.2d 709, 712 (Pa.Super. 1992), appeal denied, 534 Pa. 654,
627 A.2d 731 (1993) (finding officer had articulable suspicion the appellant
might be armed and dangerous when he observed the appellant’s “furtive
movements in stuffing a brown bag under the front passenger seat of the
vehicle.”). See also Gray, supra at 606 n.7 (stating that while
nervousness alone will not establish reasonable suspicion, it is a relevant
factor to be considered in the totality of the circumstances).
¶ 16 Accordingly, we find that the trial court abused its discretion when it
suppressed the evidence. Therefore, we reverse its suppression order and
remand for proceedings consistent with this opinion.
¶ 17 Order reversed. Case remanded. Jurisdiction relinquished.
......