Com. v. Brandon, R.

J-S49032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT BRANDON
Appellant No. 1823 WDA 2016
Appeal from the Judgment of Sentence August 24, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000089-2016
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 14, 2017
Appellant, Robert Brandon, appeals from the judgment of sentence
entered in the Beaver County Court of Common Pleas following his jury
conviction for resisting arrest.1 He argues that the evidence was insufficient
to support his conviction. We affirm.
We glean the relevant facts from the certified record. On the night of
December 20, 2015, Officer Stahl of the North Sewickley Police Department
responded to a domestic disturbance at Appellant’s house. Once he arrived
at the home, he encountered Appellant’s adult son, Jerrin Brandon, outside
the residence. Jerrin told Officer Stahl that he had gotten into an altercation
with Appellant and Appellant had punched him in the face. Jerrin had a
bruise on his eye. Officer Stahl proceeded into the residence and
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 5104.
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immediately encountered Appellant in the kitchen. Officer Hanna, also of
the North Sewickley Police Department, arrived to assist within two minutes
after Officer Stahl’s arrival.
Officer Stahl noticed that Appellant was very agitated. Appellant
explained to the officers that he had ongoing problems with his son and that
he did not want to relinquish his grandson, who was then in Appellant’s
custody, to Jerrin. Officer Stahl informed Appellant that he would be
receiving charges in the mail due to his role in the physical altercation with
Jerrin. Appellant then attempted to leave the residence to confront his son
by pushing past both officers but the officers stopped him. Appellant
responded by slamming a chair into the kitchen table, but in so doing injured
Officer Stahl’s leg. Officer Stahl decided to place Appellant under arrest.
Officer Stahl testified that he informed Appellant the he was under arrest
and moved toward him. Appellant stepped back from Officer Stahl and
yanked his arm away when the officer grabbed it. Appellant stepped back
against the refrigerator and tried to hide his hands behind his back. A
struggle ensued wherein Appellant flailed his arms.2
Officer Stahl verbally warned Appellant to stop resisting and ordered
Appellant to give the officer his hands. However, Appellant continued to flail
2
While this struggle was occurring, Officer Hanna was occupied in an
adjacent room with another of Appellant’s sons, Devin. Devin initially was
telling Appellant to cooperate, but then began yelling at Officer Stahl to get
off of Appellant. Officer Hanna prevented Devin from joining the melee
between Appellant and Officer Stahl.
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his arms and struck Officer Stahl in the face. Officer Stahl then forced
Appellant to the ground. At that point, Officer Stahl and Appellant were
rolling on the ground with Appellant refusing to be handcuffed. According to
Officer Stahl, they struggled on the ground for about five minutes until
Appellant finally calmed down, sat in a chair, and was handcuffed. Appellant
was then transported to the police department.
At trial, Appellant testified that he was not trying to prevent Officer
Stahl from making an arrest but instead was “attempting to turn away from
Officer Stahl to fall forward in order to avoid falling onto his back on which
numerous surgeries were performed.” Trial Ct. Op., 10/31/16, at 13. On
July 21, 2016, the jury found Appellant guilty of one count of resisting
arrest.3 On August 24, 2016, the trial court sentenced Appellant to ninety
days of probation. On September 6, 2016, Appellant filed a post-sentence
motion requesting, inter alia, an arrest of judgment. After a hearing, the
trial court denied the motion, and this instant timely appeal ensued. 4
Appellant raises a single issue for review:
I. Did the [trial] court abuse its discretion in denying the
motion for arrest in judgment insofar as the evidence was
insufficient as a matter of law to sustain the conviction of
resisting arrest where the Commonwealth failed to prove
beyond a reasonable doubt that [Appellant] placed Officer
3
The jury found Appellant not guilty of simple assault.
4
Appellant submitted a court-ordered Pa.R.A.P. 1925(b) statement, and the
trial court issued an opinion adopting its October 31, 2016 memorandum
opinion and order denying Appellant’s motion for arrest of judgment.
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Stahl at substantial risk of bodily injury, or that he
employed a means of resistance justifying or requiring
substantial force to overcome the resistance?
Appellant’s Brief at 5.
Appellant argues that the evidence was insufficient to sustain his
conviction for resisting arrest where his conduct did not create a “substantial
risk of bodily injury” or require the use of “substantial force to overcome” his
resistance. Appellant’s Brief at 24. While he acknowledges that he did not
initially cooperate with Officer Stahl, he asserts that he did not intentionally
hit the officer and ultimately cooperated by being transported to the police
station without incident. Id. at 24, 33. No relief is due.
When evaluating a challenge to the sufficiency of the evidence:
[W]e view the evidence in the light most favorable to the
Commonwealth together with all reasonable inferences
from that evidence, and determine whether the trier of fact
could have found that every element of the crimes charged
was established beyond a reasonable doubt.
Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)
(citations omitted).
The Pennsylvania Crimes Code defines 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. § 5104.
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Moreover, the crime of resisting arrest can be established without
evidence of “aggressive use of force such as striking or kicking of the
officer.” Commonwealth v. McDonald, 17 A.3d 1282, 1285 (Pa. Super.
2011) (citation omitted). This Court has held that even passive resistance,
which requires officers to exert substantial force to overcome, is sufficient
evidence to sustain a conviction for resisting arrest. Commonwealth v.
Thompson, 922 A.2d 926, 928 (Pa. Super. 2007).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Harry E.
Knafelc, we conclude the trial court’s opinion comprehensively discusses and
properly disposes of the issue presented. See Trial Ct. Op. at 11-16 (finding
that evidence of Appellant’s conduct was sufficient to sustain his conviction
for resisting arrest where he refused to remove his hands from behind his
back and then required Officer Stahl to exert substantial force in a prolonged
struggle on the ground to effectuate an arrest). Accordingly, we affirm on
the basis of the trial court’s opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2017
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Circulated 07/28/2017 03:39 PM