Schemberg v. Smicherko , 2014 Pa. Super. 23 ( 2014 )

DISSENTING OPINION BY

OLSON, J.:

I respectfully dissent. Karl Schem-berg’s complaint did not allege sufficient facts to establish a violation of the resisting arrest statute, 18 Pa.C.S.A. § 5104. Accordingly, because Schemberg did not set forth a viable prima facie cause of action alleging negligence per se, I would affirm the trial court order sustaining preliminary objections and dismissing Schemberg’s complaint with prejudice. Moreover, as Schemberg’s brief fails to challenge the trial court’s order sustaining the preliminary objections to his negligence cause of action, said issue is waived.

Schemberg alleged negligence per se, and as the majority accurately notes, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

(2) The statute or regulation must clearly apply to the conduct of the defendant;

(3) The defendant must violate the statute or regulation;

(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.

Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-1059 (Pa.Super.2003).

At issue herein, 18 Pa.C.S.A. § 5104 provides:

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.

Schemberg asks this Court to examine the purpose of Section 5104:

This presents a matter of statutory interpretation, and as this is a purely legal question, our standard of review is de novo and scope of review is plenary. The objective of all interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature. Generally, the best indication of the General Assembly’s intent is the plain language of the statute. When the words of a statute are clear and free from all ambiguity, they are presumed to be the best indication of legislative intent.

Allstate Life Ins. Co. v. Commonwealth of Pennsylvania, 617 Pa. 1, 52 A.3d 1077, 1080 (2012) (citations, brackets and quotations omitted).

As a matter of law, Schemberg has failed to allege James Smicherko violated Section 5104, the third requirement pursuant to Mahan, supra. In his complaint, Schemberg alleged, in pertinent part:

5. After observing [James Smicherko (Smicherko) ] urinating in public, [Schemberg] approached [Smicherko] to further investigate [Smicherko’s] actions.

6. In response to [Schemberg’s] approach, [Smicherko] ran from the scene and away from [Schemberg] in an attempt to avoid [Schemberg’s] investigation.

7. [Schemberg] pursued [Smicherko] as [Smicherko] ran away and eventually apprehended [Smicherko] not far from the area where [Smicherko] was observed urinating in public.

8. In pursuing and apprehending [Smicherko], [Schemberg] suffered significant injury including a comminuted, depressed fracture of the lateral tibia plateau of his right leg which required surgery and other substantial medical care, and will continue to require such medical care and treatment into the future.

9. [Schemberg’s] injury occurred when he was suddenly caused to drop from a height between twelve (12) to fifteen (15) inches while chasing [Smi-cherko] in an area that was not well lit.

10. [Schemberg] believes, and therefore avers, that [Smicherko] knew, or should have known, that his actions in running away from [Schemberg] could cause serious injury to [Schemberg].

Complaint, 7/13/2012, at 2.

“[E]vidence of violation of a statute ... may constitute negligence per se, irrespective of the criminal penalties contained therein or whether there has been a conviction thereunder.”¹ Hannon v. City of Philadelphia, 138 Pa.Cmwlth. 166, 587 A.2d 845, 851 (1991), citing Mecca v. Lukasik, 366 Pa.Super. 149, 530 A.2d 1334 (1987). However, we have previously determined:

The intent of [S]ection [5104] is to confine the offense to forcible resistance that involves some substantial danger to the person. As a general rule, therefore, it is not criminal merely to flee arrest. However, where the circumstances of the flight expose the pursuing officers to substantial danger a [finding of a violation of] resisting arrest is proper. A person resists arrest by conduct which creates a substantial risk of bodily injury to the arresting officer or by conduct which justifies or requires substantial force to overcome the resistance.

Commonwealth v. Miller, 327 Pa.Super. 154, 475 A.2d 145, 146 (1984) (citations, quotations, and original emphasis omitted)(emphasis added).

After reviewing the allegations set forth in Schemberg’s complaint, the trial court concluded:

Fleeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm to a police officer. Moreover, [Smicherko] did not employ any resistance which forced [Schemberg] to overcome the resistance with substantial force.

Trial Court Opinion, 2/21/2013, at 4. I agree.

The plain language of Section 5104 requires conduct that “creates a substantial risk of bodily injury to the public servant or anyone else.” 18 Pa.C.S.A. § 5104 (emphasis added). “Substantial” is defined as “not imaginary or illusory: real, true[.]” Merriam Webster’s Colligate Diotionary 1245 (11th ed. 2008). Substantial risk means a strong or real possibility, rather than a remote chance, that a certain result may occur. Here, the trial court correctly held as a matter of law that Smicherko’s mere flight did not create a substantial risk of injury.

Moreover, I take issue with the majority’s reliance on Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920, 925 (1989) to support the conclusion that a fact-finder could reasonably believe that Smicherko’s flight created a substantial risk of bodily injury. Majority Opinion, at 1074-75. In Lyons, a prior panel of this Court determined:

When the local deputy sheriffs arrived to arrest appellant, he ran into the middle of Lycoming Creek and attempted to swim downstream with the current. The water level of the creek was waist deep and, because it was early spring, the water temperature was frigid. The creek had a slippery streambed and a swift current. Two of the deputy sheriffs went into the creek after appellant. One officer, after three unsuccessful attempts, managed to get a grip of appellant who was kicking and struggling to get away. When the other officer then managed to grab appellant’s arm, appellant went limp, pulled his feet underneath him, refused to walk, and became rigid. As a result, the two officers literally had to carry him to the bank, losing their balance a few times along the way. The two officers asked appellant to walk, but he refused. When they were within four to five feet of the bank, the two officers who were waiting on the shore, jumped in and together the four officers carried appellant up to the bank where appellant was then handcuffed.

Appellant argues that there was no evidence presented that he, at any time, assaulted or attempted to assault the officers or that he had a weapon. Appellant claims that he was simply fleeing from arrest and that no evidence was introduced which demonstrated that he created a substantial risk of bodily injury to the deputy sheriffs. His arguable claim is inapposite.

[Section 5104] does not require serious bodily injury. Nor does it require actual injury to the arresting officer. Rather, sufficient resistance is established if the arrestee’s actions created a substantial risk of bodily injury to the arresting officer. Appellant’s struggle with the two deputies in the middle of a frigid stream with a rocky uneven bed was sufficient to meet that requirement.

Moreover, the statute includes the disjunctive phrase “or employs means justifying or requiring substantial force to overcome resistance.” Appellant’s actions unquestionably fall within the ambit of this portion of the statute. It took four deputy sheriffs to finally subdue appellant. Substantial force was thus required to overcome appellant’s resistance to the arrest.

Commonwealth v. Lyons, 382 Pa.Super. 488, 555 A.2d 920, 925 (1989) (internal citation omitted) (emphasis in original).

In a later decision, this Court clarified Lyons, noting that “under the rather extreme circumstances of that case, appellant’s flight had created a substantial risk that, considering the omnipresent danger presented by a creek’s uneven, slippery bottom and rapid current, one or more of the officers needed to capture appellant could have incurred bodily injury as a result of being led into the freezing waters.” In Interest of Woodford, 420 Pa.Super. 179, 616 A.2d 641, 644 (1992). In Woodford, a juvenile attempted to steal an off-duty police officer’s personal vehicle. From an upstairs window, the officer witnessed the juvenile leaving the area where his parked car was located. The officer hurriedly dressed in regular clothing and attempted to arrest the juvenile himself, despite the presence of an on-duty police officer. The officer approached the juvenile at the juvenile’s residence and a struggle ensued. We determined that there was insufficient evidence to adjudicate the juvenile delinquent of resisting arrest. Notably, in distinguishing Lyons, this Court opined, “[the officer] was not deliberately led into an inherently dangerous situation by [the juvenile], but rather, created a dangerous situation for himself when he chose to vent his personal anger by attacking [the juvenile] in the presence of a group of [juvenile’s] friends and relatives.” Id. (emphasis added).

Taken together, Lyons and Woodford reveal that mere flight — by itself — will not generally constitute resisting arrest under Section 5104. Our decision in Lyons establishes only that flight may qualify as resisting arrest where a suspect’s selected path of evasion includes inherently dangerous conditions that the suspect knows or should know will pose a substantial risk of injury to the pursuing officer. These factors are not present in this case.

Thus, I believe that even accepting as true Schemberg’s averments that Smicher-ko fled “in the middle of the night, through a poorly-lit area of uneven terrain”, a fact-finder could not reasonably conclude the flight created a substantial risk of bodily injury. See Majority Opinion, at 1074-75, citing Complaint, 7/13/2012, at ¶¶4, 6, 9. Schemberg’s complaint does not allege that Smicherko deliberately led him into an inherently dangerous situation, or created a substantial risk, in an effort to resist arrest. This case is in stark contrast to Lyons wherein the defendant struggled with police, led them into a frozen creek, went limp, and required four police officers to drag him up an embankment. In my view, based upon my plain reading of Section 5104, the cases interpreting it, and the fact that the instant complaint did not allege that Smicherko deliberately led police into an inherently dangerous situation, Schemberg cannot prove that Smicherko created a substantial risk of bodily injury to support a negligence per se cause of action pursuant to Section 5104.

Moreover, this Court has been called upon numerous times to determine the types of acts that require substantial force by police to overcome resistance pursuant to Section 5104. See Commonwealth v. Clark, 761 A.2d 190, 198-194 (Pa.Super.2000) (Evidence was sufficient to find that defendant employed means justifying or requiring substantial force to overcome his resistance, so as to support conviction of resisting arrest, where, after being informed that he was under arrest, defendant took fighting stance, told officer “you are going to have to fight me,” and was chased down traffic lanes before being apprehended by the officer, who struggled with defendant, and rolled him over on ground to handcuff him.); Commonwealth v. McDonald, 17 A.3d 1282, 1285-1286 (Pa.Super.2011) (Evidence was sufficient to support conviction for resisting arrest; defendant fled after he realized that police had observed him delivering cocaine, defendant led officers on a chase that lasted for several blocks, officers caught up with defendant after he slipped on wet grass, multiple officers were needed to hold defendant on the ground, defendant continued to try to get up, and officers were forced to use a taser to effectuate the arrest.); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96, 99 (1984) (Evidence that defendant drew his revolver and pointed it at police detectives, that he struck and kicked detectives, creating substantial risk of bodily injury, and that substantial force was needed to overcome resistance of defendant as both detectives attempted to subdue defendant by physical force and fired their weapons at him as he fled, was sufficient to sustain conviction for resisting arrest.); Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.Super.2007) (Evidence that the defendant, who interlocked her arms and legs with her husband, used passive resistance requiring police to use substantial force to overcome provided sufficient evidence to support resisting arrest conviction.); Commonwealth v. Anderjack, 271 Pa.Super. 334, 413. A.2d 693, 696 (1979) (“[T]he evidence demonstrated that when Detective Flaherty approached [defendant] the second time, and identified himself and tried to turn off the engine of [defendant’s] car, [defendant] backed up the car while the detective was inside it, and sped away, throwing the detective to the ground. This evidence was no doubt evidence of flight to avoid arrest, but it was also evidence that [defendant] had ‘create(d) a substantial risk of bodily injury* to the detective[.]”). By comparison, the facts as alleged in this ease simply do not support a prima facie case that Schemberg had to employ force to overcome resistance by Smicherko.

Accordingly, reliance on Lyons is misplaced and the facts in this case required the dismissal of Schemberg’s1 complaint. Here, as set forth in his complaint, Schem-berg observed Smicherko urinating in public and approached him. Smicherko fled to avoid investigation and/or apprehension. Schemberg pursued and eventually apprehended him. In sum, the complaint only alleged flight to avoid arrest, which traditionally falls outside the scope of conduct criminalized by Section 5104. There are no allegations of conduct on Smicherko’s part that created a substantial risk of bodily injury to Schemberg or required substantial force to overcome. Schemberg did not allege that he was deliberately led into an inherently dangerous situation. By his own admission, Schemberg conceded that Smicherko was apprehended a short distance from where he was initially seen. Schemberg did not allege a viable, prima facie claim that Smicherko violated Section 5104 that supported a cause of action for negligence per se. Hence, I would affirm the trial court’s order.

Finally, I take issue with the majority’s consideration of Schemberg’s ordinary negligence claim. See Majority Opinion, at 1074-77. In his brief to this Court, Schemberg does not challenge the trial court’s order that sustained preliminary objections to his negligence cause of action and, hence, I find the issue waived. On appeal, although Schemberg sporadically references his claim for negligence in his appellate brief, he does not provide any argument or citations to either authority or the record in defense of this claim. See Pa.R.A.P. 2119; Bombar v. West American Ins. Co., 932 A.2d 78, 93 (Pa.Super.2007) (failure to develop an argument with citation to and analysis of relevant authority waives issue on appeal); In re S.T.S., Jr., 76 A.3d 24, 42 (Pa.Super.2018) (“[M]ere issue spotting without analysis or legal citation to.support an assertion precludes our appellate review of a matter”[;] an appellate court “is neither obliged, nor even particularly equipped, to develop an argument for a party.”)- Accordingly, I believe the majority erred in reaching the dismissal of Schemberg’s ordinary negligence claim.