Com. v. Dabney, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIL DABNEY
Appellant No. 1447 EDA 2016
Appeal from the Judgment of Sentence January 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000988-2015
CP-51-CR-0000989-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 14, 2017
Appellant, Jamil Dabney, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
convictions for possession with intent to deliver (“PWID”), recklessly
endangering another person (“REAP”), and resisting arrest.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On November 18, 2014, two on-duty Philadelphia police officers in a marked
squad car observed Appellant engage in a hand-to-hand drug transaction.
The officers attempted to apprehend Appellant, but were unsuccessful.
About an hour later, the officers again spotted Appellant near the same
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, and 5104, respectively.
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corner. Appellant appeared to engage in another hand-to-hand drug
transaction.
Officer Lewis exited the squad car and chased Appellant on foot, while
Officer James attempted to follow in the car. Officer Lewis tackled Appellant
in a nearby alley. Appellant fumbled with the waistband of his pants, and
ignored Officer Lewis’s commands to show his hands. Appellant then reached
toward Officer Lewis’s chest and pulled his police radio off. Appellant
grabbed Officer Lewis by the neck and began applying pressure. Officer
Lewis struck Appellant in the head with his elbow several times until
Appellant released the officer’s neck. Appellant then stood and tried to flee.
Officer James approached Officer Lewis and Appellant on foot, and
assisted Officer Lewis in putting Appellant in handcuffs. The officers
recovered two crushed vials of phencyclidine, commonly called PCP, from the
ground where Officer Lewis had tackled Appellant.
Appellant was charged with PWID, possession of a controlled
substance, aggravated assault, simple assault, REAP, and resisting arrest.
Appellant filed a pretrial motion to quash based on the Commonwealth’s
alleged failure to make out a prima facie case; the trial court denied
Appellant’s motion. Appellant then filed a motion to suppress the drugs
recovered from the scene of his arrest, claiming the officers had no
reasonable suspicion or probable cause to stop Appellant. The trial court also
denied that motion, and Appellant proceeded to a bench trial. The court
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convicted Appellant of PWID, REAP, and resisting arrest, and determined
Appellant was not guilty of the other charged offenses.
The court sentenced Appellant to fifteen to thirty months’ incarceration
on the PWID conviction, plus an aggregate 4 years’ probation on the REAP
and resisting arrest convictions. Appellant timely filed a post-sentence
motion challenging the sufficiency of the evidence supporting each of his
convictions. The court denied the motion. Appellant appealed.
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his conviction for resisting arrest. He claims the Commonwealth
failed to present evidence demonstrating his brief struggle with Officer Lewis
did not constitute resisting arrest, as Appellant did not create a substantial
risk of injury to either officer. Appellant contends contact between officers
and arrestees should be viewed on a continuum, with only the most serious
cases violating the statute. Appellant insists his conduct was comparatively
“mild” and thus does not qualify as resisting arrest. We disagree.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009)
(citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
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wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Any doubt about the defendant’s guilt is to be resolved by the
factfinder unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be drawn from the
combined circumstances.
Id. (citations and quotation marks omitted; brackets in original).
The Pennsylvania Crimes Code defines resisting arrest as follows:
§ 5104. 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 or discharging any other duty, 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.
“In order for a person to be guilty of resisting arrest, there must first
have been a lawful arrest.” Commonwealth v. Stevenson, 894 A.2d 759,
775 (Pa. Super. 2006) (emphasis in original; citation omitted). Bodily injury
is the impairment of a physical condition or substantial pain. See 18
Pa.C.S.A. § 2301.
A minor scuffle is insufficient to support a conviction for resisting
arrest. See, e.g., Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa.
Super. 1981) (holding that simply trying to escape from officer’s grip did not
meet requirements for resisting arrest). However, more violent forms of
struggling, such as kicking or hitting an arresting officer, constitute resisting
arrest. See, e.g., Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.
Super. 2011); Stevenson, 894 A.2d at 775. The Commonwealth, however,
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need not prove that an officer was actually injured by the defendant’s
conduct; merely that the defendant created a risk that the officer could be
injured. See Commonwealth v. Jackson, 907 A.2d 540, 546 (Pa. Super.
2006).
We find that the Commonwealth met its burden in presenting sufficient
evidence to convict Appellant of resisting arrest. The officers had probable
cause to lawfully arrest Appellant based on the two hand-to-hand drug
transactions they witnessed. Appellant did not merely attempt to run from
the police or to escape Officer Lewis’s grasp, but instead took the
affirmative, violent step of grabbing Officer Lewis by his neck. Though
Officer Lewis was not actually injured by Appellant’s action, the
Commonwealth need not prove that Appellant inflicted injury, only that he
created a risk that he could have done so, which is certainly the case here.
Consequently, this issue merits no relief.
In his second issue, Appellant challenges the sufficiency of the
evidence to support his conviction for REAP. Appellant contends he did not
put Officer Lewis in actual danger of death or serious bodily injury, since
Officer Lewis said that Appellant’s hands on his neck did not obstruct his
breathing. Appellant also avers the evidence does not demonstrate that he
consciously disregarded a known risk of serious bodily injury. We disagree.
To establish REAP, the Commonwealth must show that a person
recklessly engaged in conduct which placed or may have placed “another
person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The
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Commonwealth is required to show that the defendant “consciously
disregarded” the risk of death or serious bodily injury. Commonwealth v.
Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003). “Serious bodily injury” is
that which creates “a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301. A REAP conviction will
be sustained where the circumstances show that Appellant “had an actual
present ability to inflict harm and not merely the apparent ability to do so.”
Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. 2006) (citation
omitted).
As mentioned, Appellant placed his hands around Officer Lewis’s neck
and applied pressure. By doing so, Appellant consciously disregarded the risk
that he could obstruct Officer Lewis’s breathing and thereby seriously injure
the officer. Though Appellant did not actually harm Officer Lewis, the statute
requires only that Appellant engaged in conduct that may have placed
Officer Lewis in danger of death or serious bodily injury. Appellant’s
placement of his hands around Officer Lewis’s neck created that very risk.
Appellant had the actual, present ability to inflict harm on the officer when
Appellant choked him. He is entitled to no relief on this claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2017
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