Com. v. Richardson, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RONALD B. RICHARDSON
Appellant No. 3721 EDA 2016
Appeal from the Judgment of Sentence Entered November 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0010430-2015
BEFORE: STABILE, DUBOW, JJ. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: Filed July 20, 2018
Appellant, Ronald B. Richardson, appeals from the November 4, 2016
judgment of sentence imposing nine to eighteen months of incarceration for
resisting arrest (18 Pa.C.S.A. § 5104). We affirm.
The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On June 1, 2015, Appellant reported to the office of Parole
Agent David Knorr which is located at 2630 N. 13th Street,
Philadelphia, PA. Appellant was ordered to report on this day
because he had been repeatedly submitting urine tests positive
for THC, marijuana. During the course of this interview Agent
Knorr questioned Appellant regarding the transportation that
brought him to the officer. After some questioning, it was
determined that he had driven himself to the office in violation of
his parole and Appellant was placed into custody. Whilst Appellant
remained in Agent Knorr’s office, Parole Agents searched his car
and found a cell phone belonging to Appellant. Based on some
information found in the cell phone, Appellant was questioned
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about a car accident involving his mother and himself. At this
point Appellant ‘got louder’ and stood up and started to struggle
with Agent Knorr. He was in handcuffs and a restraint belt. A
struggle ensued and Agent Knorr along with Agent Hernandez
were able to get Appellant on the ground. At this point, Appellant
was moved to a holding cell in anticipation of him being
transferred to another facility.
Trial Court Opinion, 7/31/17, at 2 (record citations omitted).
On November 4, 2016, the parties proceeded to a bench trial. The trial
court found Appellant guilty of resisting arrest and immediately sentenced
him. This timely appeal followed. Appellant raises two issues for our review:
I. Was the verdict based on legally insufficient evidence
where [Appellant’s] conduct did not expose the
officers to a substantial risk of bodily injury and the
substantial force used by the officers was
unnecessary?
II. Was the judgment invalid as the charge of conviction
was materially different than [sic] the charged
offense?
Appellant’s Brief at 5.
In his first argument, Appellant claims the Commonwealth produced
insufficient evidence to support his conviction for resisting arrest. Our
standard of review is well settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
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favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Thompson, 93 A.3d 478, 489 (Pa. Super. 2014) (quoting
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
The 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.A. § 5104. Appellant claims the Commonwealth failed to prove that
he created a substantial risk of bodily injury or employed means requiring
police to use substantial force.
Evidence of “passive resistance” that requires police to use substantial
force is sufficient to sustain a conviction under § 5104. Commonwealth v.
McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011), appeal denied, 29 A.3d
372 (Pa. 2011) (citing Commonwealth v. Thompson, 922 A.2d 926, 928
(Pa. Super. 2007)). Aggressive force such as striking or kicking is not
necessary. Id. (citing Commonwealth v. Miller, 475 A.2d 145, 146 (Pa.
Super. 1984)). In McDonald, the defendant fled on foot requiring police to
chase him through traffic. McDonald, 17 A.3d at 1286. Multiple officers had
to hold the defendant down once he was apprehended, and he did not cease
his resistance until an officer tasered him. Id. In Thompson, the defendant
husband and wife were guilty of resisting arrest where they interlocked their
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arms and legs, requiring a substantial amount of force to separate them.
Thompson, 922 A.2d at 927.
Instantly, the record reflects that Appellant was in a restraining belt and
shackles after Agent Knorr arrested him for violating his parole. N.T. Trial,
11/4/16, at 18. Appellant was to be placed in a holding cell, but before that
happened he became agitated, stood up, and cursed at Agent Knorr. Id. at
19. When Agent Knorr attempted to push Appellant down into his chair,
Appellant “leaned his left shoulder down and rammed [Agent Knorr] into the
wall.” Id. at 19. Appellant continued to resist as another agent came to Agent
Knorr’s assistance and wrestled Appellant to the ground. Id. at 20-22.
Appellant continued to resist as additional agents arrived, and continued to
resist even after he was tasered. Id. at 22-23. This evidence is more than
sufficient to establish that Appellant forced police to use substantial force to
subdue him.
Appellant also argues the agents used excessive force against him, and
that he is not guilty under § 5104 because his actions did not require that
excessive force. Appellant’s Brief at 14. Appellant argues that the use of a
Taser, in particular, was excessive. Id. This argument disregards the law of
substantial force under § 5104. In Thompson for example, we concluded
that substantial force was necessary when the two defendants interlocked
their arms and legs. Thompson, 922 A.2d at 927-28. After a struggle of
several minutes, police used pepper spray to get the couple disengaged. Id.
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We upheld the conviction, noting that the defendant’s argument “completely
ignores the statutory language of section 5104 criminalizing resistance
behavior that requires substantial force to surmount.” Id. at 928. In this
case, as well, Appellant’s argument simply ignores the statutory language.
In his second argument, Appellant claims the trial court found him guilty
of a different offense than resisting arrest. He claims the Commonwealth’s
theory at trial was that Appellant created a substantial risk of bodily injury
while resisting arrest. Ultimately, the trial court found that Appellant forced
the parole agents to use substantial force to discharge a duty other than arrest
(the court found, correctly, that Agent Knorr had already arrested Appellant
at the time of the altercation). We observe that, by its plain language, § 5104
covers two scenarios—resisting arrest or preventing an officer from
discharging another lawful duty. Appellant does not dispute that post-arrest
procedures, in this case moving the arrestee to a holding cell, constituted a
lawful duty on the part of Agent Knorr and his fellow agents. Nor does
Appellant dispute that § 5104 applies to that scenario. Rather, he claims that
the separate clauses of § 5104 create separate offenses. Appellant does not
cite any law in support of this remarkable proposition, and we have found
none.
Instead, Appellant cites Commonwealth v. Sinclair, 897 A.2d 1218
(Pa. Super. 2006), in which this Court noted that the purpose of a criminal
information is to “apprise the defendant of the charges against him so that he
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may have a fair opportunity to prepare a defense.” Id. 1223. Indeed, this is
a fundamental requirement of due process. In Sinclair, we analyzed whether
the defendant was prejudiced by an amended information. Id. Instantly,
Appellant criticizes the Commonwealth for never seeking to amend the
information. In so doing, he simply ignores that he was convicted of the
charged offense. Furthermore, Appellant does not (and cannot) claim that he
was unaware of the pertinent facts. Fundamentally, Appellant argues that he
was denied due process of law. Given his notice of the charge against him
and the supporting facts, we cannot agree.
Because we have found no merit in either of Appellant’s assertions of
error, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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