Com. v. Fluck, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL FLUCK :
:
Appellant : No. 2161 EDA 2017
Appeal from the Judgment of Sentence April 26, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011818-2016
BEFORE: PANELLA, J., PLATT, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 04, 2018
Michael Fluck appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas following his convictions for
fleeing and resisting arrest. Appellant contends the Commonwealth presented
insufficient evidence to support his resisting arrest conviction. We affirm.
On the evening of October 11, 2016, Officer Emanuel Moll of the
Philadelphia Police Department observed Appellant disregard a red light at the
intersection of Broad and Susquehanna streets in Philadelphia. Officer Moll
and his partner, Officer Digeno, followed Appellant for several blocks and
witnessed him drive through three more red lights. At this point, Officer Moll
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 Retired Senior Judge assigned to the Superior Court.
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activated his overhead lights and directed Appellant to pull over to the side of
the road. Appellant complied.
However, before Officer Moll could complete the traffic stop, Appellant
got out of his car and began walking towards the officers. Despite Officer Moll’s
instructions to return to his vehicle, Appellant continued approaching the
police car. Fearing for his safety, Officer Moll decided to handcuff Appellant.
Appellant did not comply with instructions to place his hands behind his back
and began to struggle. Officer Digeno pulled out a taser and warned Appellant
if he continued to struggle, he would use it. Appellant disregarded this
warning, continued to struggle, and Officer Digeno employed the taser. Officer
Moll managed to get his handcuffs on one of Appellant’s wrists, but Appellant
got away, ran back to his car, and drove away. Appellant was detained shortly
thereafter by a highway police officer after crashing his car at the intersection
of Broad and Dauphin streets.
Appellant proceeded to a bench trial and was convicted of fleeing or
attempting to elude officer and resisting arrest.1 The court sentenced
Appellant to time served to 12 months’ incarceration, followed by one year of
probation. This timely appeal follows.
Appellant’s sole challenge on appeal is to the sufficiency of the evidence
underlying his resisting arrest conviction. “Our standard of review in a
sufficiency of the evidence challenge is to determine if the Commonwealth
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1 75 Pa.C.S.A. § 3733(a) and 18 Pa.C.S.A. § 5104, respectively.
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established beyond a reasonable doubt each of the elements of the offense,
considering all the evidence admitted at trial, and drawing all reasonable
inferences therefrom in favor of the Commonwealth as the verdict-winner.”
Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008) (citations omitted).
Our Crimes Code defines the offense in question, resisting arrest, as
follows:
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.
18 Pa.C.S.A. § 5104.
Appellant asserts the Commonwealth failed to prove he intended to
prevent Officer Moll “from effectuating a lawful arrest or discharging any other
duty.”2 Specifically, he first claims that because Officer Moll was only
attempting to detain Appellant when he decided to place him in handcuffs, his
resistance afterwards cannot be categorized as resisting arrest. See
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2 Appellant also asserts that “his conduct, which amounted to mere non-
submission, does not fall within the ambit of the resisting arrest statute.”
Appellant’s Brief, at 15. However, Appellant did not include this challenge to
the specific element of the resisting arrest statute in his court-ordered Rule
1925(b) statement. Therefore, he has waived this challenge for the purposes
of appellate review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (mandating “[a]ny issues not raised in a 1925(b) statement will be
deemed waived”). See also Commonwealth v. Williams, 959 A.2d 1252,
1257 (Pa. Super. 2008) (observing defendant must specify element or
elements upon which the evidence was insufficient in order to preserve issue
for appellate review).
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Appellant’s Brief, at 10-13. And then he asserts the Commonwealth failed to
provide evidence that Officer Moll was “discharging any other duty.” See id.,
at 13-15. We disagree with each contention.
Despite Appellant’s claims to the contrary, the resisting arrest statute
does not require that an officer intended to make an arrest for the provisions
to apply; it requires only that a party act with “the intent of preventing … a
lawful arrest.” Therefore, our courts have found sufficient evidence to support
a resisting arrest conviction in a variety of pre-arrest situations, as long as an
arrest would have been lawful under the circumstances. See, e.g.,
Commonwealth v. Miller, 475 A.2d 145, 147 (Pa. Super. 1984) (finding
sufficient evidence to support a resisting arrest conviction where officers only
intended to issue a citation to defendant, but defendant resisted a lawful
stop); Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa. Super. 2006)
(finding evidence sufficient to support a resisting arrest conviction where
officer had reasonable suspicion to make an investigatory stop and
defendant’s actions during stop provided probable cause for an arrest).
Here, Appellant himself “concedes that his initial detention was lawful,
and that the police had ‘probable cause’ to effectuate an arrest for a violation
of the Philadelphia Code if they chose to do so.” Appellant’s Brief, at 11. A
showing “that the arresting officer possess[ed] probable cause” establishes a
lawful arrest under the statute. Commonwealth v. Hock, 728 A.2d 943, 946
(Pa. 1999) (citation omitted). Thus, Appellant’s subsequent actions of
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struggling, disobeying orders, and fleeing in his car can be properly
categorized as actions made with the “the intent of preventing … a lawful
arrest.”
Also, we find there was sufficient evidence that Appellant prevented
Officer Moll from “discharging any other duty.” As this Court has explained,
“[t]he provisions of 18 Pa.C.S.A. § 5104 are clearly disjunctive.”
Commonwealth v. Karl, 476 A.2d 908, 911 (Pa. Super. 1984). “To be
convicted under the first provision of § 5104,” we have held, “it is essential
that there be a lawful arrest.” Id. (citation omitted). However, § 5104 also
provides that an individual may be convicted of resisting arrest where the
individual prevents a public servant from “discharging any other duty.” Id.
This provision
covers physical interference in a host of circumstances in which
public servants discharge legal duties other than arrest. These
include, for example, a policeman executing a search warrant, a
fireman putting out a blaze, a forest or agricultural official making
required inspections, an election official charged with monitoring
balloting, and the like.
Id. (citation and emphasis omitted).
Our review of the record reveals that Officer Moll witnessed Appellant
commit several violations of the Vehicle Code. Therefore, when the officer
pulled Appellant over, he was clearly “discharging [his] duty” of issuing a
citation to Appellant for these traffic violations. Appellant’s subsequent
decision to get out of his vehicle, approach the officers, struggle with the
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officers, and flee in his vehicle, prevented Officer Moll from “discharging [his]
duty” of enforcing the Vehicle Code.
We find the Commonwealth presented sufficient evidence sufficient to
support Appellant’s conviction for resisting arrest under § 5104.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
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