Commonwealth v. Stortecky , 238 Pa. Super. 117 ( 1975 )

Opinion by

Van der Voort, J.,

Appeal is taken to this Court from judgment of sentence rendered upon convictions by a jury for the crimes of resisting arrest¹ and aggravated assault.² Factually, it appears that police officers were summoned when appellant became loud and abusive while attending a party held in the Lithuanian Hall on the South Side where a substantial group of people had gathered to play bingo. When the police arrived, Officer Leonard attempted to find out from appellant what the problem was. Appellant kept shouting and hollering about the “m - f - niggers, that they should be thrown out of the hall.” He then became abusive of Officer Leonard, using obscene language. He refused to leave the hall at the request of the police. Officer Leonard then placed appellant under arrest. A scuffle ensued when the officers arrested appellant, and the record is clear that appellant assaulted and battered the person of the arresting officer. Procedurally, appellant’s motion to quash the indictment was denied. A timely motion for a new trial was filed and after argument refused.

Appellant challenges his judgment of sentence on the ground that the lower court erred in failing in its charge to define “lawful arrest” in the language requested by appellant’s counsel. The term “lawful arrest” is involved in each of the offenses of which the appellant was found guilty. The Crimes Code formulates the offenses of aggravated assault and resisting arrest in pertinent parts as follows:

Ҥ2702 Aggravated assault

(a) Offense defined. — A person is guilty of aggravated assault if he:

(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest;..

Ҥ5104 Resisting arrest or other law enforcement.

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest..., the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.”

The sole question raised by appellant was whether or not the lower court erred in failing to instruct the jury on the elements of a lawful arrest. He thus raises the issue as follows: Is the determination of whether or not the police were engaged in a lawful arrest a question of law for the Court or a mixed question of law and fact for the fact-finder, in this case, the jury? In aid of deciding this issue it is pertinent to analyze the word “lawful”. According to Black’s Law Dictionary, Revised Fourth Edition, 1968, lawful means “Legal; warranted or authorized by law; having the qualifications prescribed by law; not contrary to or forbidden by law”. A substantially similar definition was adopted by the Court of Appeals of Ohio in the ease of Deming v. Osinski, 255 N.E. 2d 279, 21 Ohio App. 2d 89 (1969). It will be readily seen that it is not the province of the jury to determine whether or not conduct is “legal” or “warranted or authorized by law” or “having the qualifications prescribed by law” or “not contrary to nor forbidden by the law”. Determination of these matters is the province of the Court. Our reports of cases are full of ones in which the Court has decided whether or not there was a lawful arrest. Generally, the question is, as in this case, “was there probable cause for the arrest”,³ and probable cause has been determined by the Court. The Trial Judge was not required to place the question of the lawfulness of the appellant’s arrest before the jury, that being a matter for his decision which is subject to our review. We find from the record that there was ample evidence supporting probable cause of the officers to arrest the appellant.

Judgment of sentence affirmed.

JACOBS, J., concurs in the result.

1 . Act of 1972, Dec. 6, P.L. 1482, No. 334, §1; 18 Pa. C.S. §5104.

2 . Act of 1972, Dec. 6, P.L. 1482, No. 334, §1; 18 Pa. C.S. §2702(a)(3).

3 . “The standard for arrest is probable cause, defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense’.” Gerstein v. Pugh, 420 U. S. 103, 95 S. Ct. 854, 862, 43 L. Ed. 2d 54 (1975).