Com. v. Patrick, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TRENT JERRELL PATRICK
Appellant No. 1265 WDA 2014
Appeal from the Judgment of Sentence June 30, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000676-2014
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 01, 2015
Appellant, Trent Jerrell Patrick, appeals from the June 30, 2014
judgment of sentence of one year’s probation, imposed after the trial court
found him guilty of one count of resisting arrest.1 After careful review, we
affirm.
The trial court set forth the facts of this case as follows.
At approximately 1:00 A.M. on December 25,
2013, City of Pittsburgh [p]olice [o]fficer Jonathan
Craig responded to a call for an individual banging on
a door with a hammer at 1202 Montezuma Street,
Apartment 2, in the Lincoln-Lemington-Belmar
section of the City of Pittsburgh, Allegheny County.
Officer Craig arrived at the location within minutes of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 5104.
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receiving the call, and found Appellant on the porch
of the residence. Officer Craig also observed fresh
damage on the door to the apartment consistent
with someone striking the door several times with a
hammer. Based on these circumstances, Officer
Craig decided to detain Appellant.
Appellant left the porch when he noticed
Officer Craig approach. Officer Craig inquired about
the hammer with no response from Appellant.
Officer Craig again asked Appellant where the
hammer was, and Appellant responded[,] “[w]hat
hammer?” Officer Craig attempted to stop
Appellant, but Appellant moved past Officer Craig
and immediately ran away. Officer Craig was able to
subdue Appellant after a ten[-]yard chase by
pushing him to the ground.
Appellant landed on the ground on his
stomach, with both hands hidden beneath him. At
that time, Officer Craig was concerned for his safety
because he did not know if Appellant possessed the
hammer which was used to damage the door, or if
he was otherwise armed. Appellant repeatedly
refused to comply with orders to show his hands,
and kept his hands beneath his body. As a result,
Officer Craig [with his partner’s assistance] had to
use substantial force, including striking Appellant
several times, in order to remove and secure
Appellant’s hands. Appellant was arrested and
charged as noted [below]. [Thereafter, the officers
recovered a hammer from the porch of the address
they responded to, 1202 Montezuma Street.]
Trial Court Opinion, 12/15/14, at 3-4.
By criminal information filed on March 3, 2014, the Commonwealth
charged Appellant with the aforementioned offense, as well as one count
each of possessing instruments of crime, loitering and prowling at night
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time, and public drunkenness.2 On June 30, 2014, following a bench trial,
the trial court found Appellant guilty of resisting arrest. The trial court found
Appellant not guilty of the remaining charges. That same day, the trial court
sentenced Appellant to one year’s probation. Appellant did not file a post-
sentence motion. Appellant filed a timely notice of appeal on July 30, 2014.3
On appeal, Appellant presents the following two issues for our review.
I. Did the trial court err when it found [Appellant]
guilty of resisting arrest because the
Commonwealth failed to prove, beyond a
reasonable doubt, that there existed a lawful
arrest?
II. Did the trial court err when it found [Appellant]
guilty of resisting arrest where the evidence was
legally insufficient to prove, beyond a reasonable
doubt, that [Appellant] created a substantial risk
of bodily injury or employed means justifying or
requiring substantial force to overcome the
resistance?
Appellant’s Brief at 5.
In both issues, Appellant challenges the sufficiency of the
Commonwealth’s evidence. We begin by noting our well-settled standard of
review. “In reviewing the sufficiency of the evidence, we consider whether
the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the
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2
18 Pa.C.S.A. §§ 907(a), 5506, and 5505, respectively.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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verdict winner, support the jury’s verdict beyond a reasonable doubt.”
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation
omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400
(2015). “The Commonwealth can meet its burden by wholly circumstantial
evidence and any doubt about the defendant’s guilt is to be resolved by the
fact finder 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.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.
2013) (en banc) (internal quotation marks and citation omitted), appeal
denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the
entire record … and all evidence actually received[.]” Id. (internal quotation
marks and citation omitted). “[T]he trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.” Commonwealth v. Orie, 88
A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d
925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation
omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
Instantly, Appellant was convicted of resisting arrest. A person is
guilty of resisting arrest “if, with the intent of preventing a public servant
from effecting a lawful arrest or discharging any other duty, the person
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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.
We first address Appellant’s argument as to the “lawful arrest” element
of resisting arrest. Specifically, Appellant contends the Commonwealth did
not show that the underlying arrest was lawful because Appellant’s conduct
did not give the police probable cause to arrest him. Appellant’s Brief at 16.
“[T]o be convicted of resisting arrest, the underlying arrest must be lawful.”
Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007) (citation
omitted). Further, “the lawfulness of an arrest depends on the existence of
probable cause to arrest the defendant.” Id. (citation omitted). Our
Supreme Court has described probable cause as follows.
Probable cause is made out when the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a
crime. 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. In
determining whether probable cause exists, we apply
a totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in
original) (citations and internal quotation marks omitted).
In this case, the totality of the circumstances demonstrates that there
was a probability that Appellant had engaged in criminal activity. At 1:00
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a.m., two police officers, within minutes of receiving information from
dispatch that a man had been banging on the door of an apartment with a
hammer, observed Appellant on the porch of that apartment and fresh
hammer marks on the door. N.T, 6/30/14, at 6-7, 10. When Officer Craig
started to approach the apartment, Appellant began walking away from the
porch, toward Officer Craig. Id. at 7. Appellant ignored the officer’s initial
attempt to speak with him. Id. Upon Officer Craig mentioning a hammer
and attempting to stop Appellant, Appellant fled. Id. at 7-8. After a ten-
yard foot chase, the officer managed to push Appellant to the ground. Id.
at 8. As the trial court found, “Officer Craig had probable cause to believe
that Appellant had damaged the door with a hammer based on the
circumstances he encountered, including the dispatch call, the damage to
the door, and Appellant’s evasive conduct, and thus the arrest was lawful.”
Trial Court Opinion, 12/15/14, at 6. This evidence was sufficient to enable
the trial court to conclude that the arrest was lawful. See 18 Pa.C.S.A.
§ 5104; Jackson, supra. Accordingly, the evidence, viewed in the light
most favorable to the Commonwealth as the verdict winner, supports the
verdict, and Appellant is not entitled to relief on his first issue. See
Patterson, supra; Diamond, supra.
In his second issue, Appellant challenges the sufficiency of the
evidence on the “resistance” element of resisting arrest. Specifically,
Appellant contends he did not create a substantial risk of bodily injury to the
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officers and his actions of lying on his hands, requiring police to forcibly
remove his hands from underneath his body, did not justify or require
substantial force to overcome. Appellant’s Brief at 23-24.
The resistance element in Section 5104 is disjunctive. 18 Pa.C.S.A.
§ 5104. To be convicted of resisting arrest, a person must employ
resistance that either “creates a substantial risk of bodily injury to the public
servant or anyone else” or “justif[ies] or requir[es] substantial force to
overcome[.]” Id. “This statutory language does not require the aggressive
use of force such as a striking or kicking of the officer.” Commonwealth v.
McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011) (citation and internal
quotation marks omitted), appeal denied, 29 A.3d 372 (Pa. 2011).
However, Section 5104 is not intended to apply to “minor scuffling which
occasionally takes place during an arrest.” 18 Pa.C.S.A. § 5104 cmt.
This Court has held that a defendant’s “use of passive resistance
requiring substantial force to overcome provide[s] sufficient evidence for
upholding [a] resisting arrest conviction.” Commonwealth v. Thompson,
922 A.2d 926, 928 (Pa. Super. 2007). In Thompson, a police officer forced
the defendant and her husband to the ground after informing the defendant
that he was arresting her husband. Thompson, supra at 927. The
defendant and her husband did not aggressively use force against the
officer; instead, they interlocked their arms and legs to prevent the officer
from applying handcuffs. Id. The defendant did not respond to the officer’s
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numerous verbal commands to release her hands from underneath her
husband’s body. Id. This Court concluded that the evidence of the
defendant passively resisting arrest by holding her arms tightly beneath her
husband, coupled with the officer’s testimony that his attempts to overcome
the resistance were exhausting, was sufficient to sustain her conviction of
resisting arrest. Id. at 928.
Similarly, in this case, the evidence showed that Officer Craig was
required to use substantial force to overcome Appellant’s “passive
resistance.” When Officer Craig attempted to restrain Appellant, he was on
the ground lying on his arms. Appellant refused to comply with Officer
Craig’s repeated demands to show his hands, place them behind his back,
and submit to being handcuffed. N.T., 6/30/14, at 8. Instead, Appellant
held his arms beneath his body, engaging in a test of physical strength with
Officer Craig. Id. at 9. Officer Craig struck Appellant several times in an
attempt to get Appellant’s hands out from under his body. Id. Still,
Appellant would not yield. Id. Eventually, Officer Craig was able to
handcuff Appellant’s left hand while his partner forcibly removed Appellant’s
right arm. Id. at 9-10. Therefore, viewed in the light most favorable to the
Commonwealth as the verdict winner, we conclude there was sufficient
evidence to prove substantial force was required to overcome Appellant’s
resistance. See 18 Pa.C.S.A. § 5104; Thompson, supra. As a result,
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Appellant is not entitled to relief on his second issue. See Diamond,
supra.
Based on the foregoing, we affirm the June 30, 2014 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2015
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