Com. v. Emerson, J.

J-S78030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAYSON MIKE EMERSON
Appellant No. 630 MDA 2014
Appeal from the Judgment of Sentence November 25, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004190-2012
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014
Jayson Emerson files this direct appeal from his judgment of sentence
for aggravated assault against a police officer1 and resisting arrest2. The
lone argument raised in this appeal is: “Whether the trial court erred in
denying [Emerson’s] Post-Sentence Motion where the jury's verdict of guilty
on both counts was against the weight of the evidence so as to shock one's
sense of justice where the Commonwealth failed to prove that [Emerson]
committed the crimes charged?” Brief for Appellant, p. 4. We affirm.
The trial court accurately recounted the evidence adduced during trial
as follows:
____________________________________________
1
18 Pa.C.S. § 2702(a)(3).
2
18 Pa.C.S. § 5104.
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The convictions at issue stem from events which
took place on the night of June 23, into June 24,
2012. (Transcript of Proceedings, Jury Trial, October
21, 2013 - October 23, 2013, p. 31) (hereinafter
‘N.T.’)
At approximately 3 a.m. on June 24, 2014,
[Emerson] walked through the alleyway behind the
Political Club located at 1550 Vemon Street in
Harrisburg. (N.T. pp. 163-64) [Emerson] testified
that ‘four or five Hispanic males’ approached,
accosted him, and struck him from behind. (N.T. p.
164) [Emerson] fought with them for three or four
minutes. (N.T. p. 184)
While [Emerson] engaged in the fight, Benito
Malave, another club patron, with no prior
association with [Emerson], exited the Political Club
from its rear door and witnessed the fight. (N.T. p.
34) Malave testified that he did not want [Emerson]
to suffer ‘abuse.’ (N.T. p. 36) Malave attempted to
break up the fight by claiming the police were on
their way. (N.T. p. 35) Malave then pulled one
attacker away from [Emerson] and returned to
[Emerson] to try to convince him to leave the scene.
(N.T. p. 36) At this point, [Emerson] struck Malave,
breaking his jaw and knocking a tooth loose. (N.T.
pp. 38, 41, 75) Some testimony indicated [Emerson]
may have struck Malave again after he fell to the
ground. (N.T. p. 74) Malave suffered a serious injury
that required two surgeries to repair. (N.T. p. 41,
97) After striking Malave, [Emerson] fled to a nearby
house. (N.T. pp. 88, 175) Malave testified that at
this time, [Emerson] was ‘completely out of it,’ as
though intoxicated. (N.T. p. 38) Another witness to
the event, Sonya Millan, Malave's niece, described
[Emerson] as ‘going crazy,’ hitting people, and
‘hitting his chest like he's the incredible hulk.’ (N.T.
p. 85)
After [Emerson] fled, Officer Steven Prisbe arrived
on the scene in response to a disturbance call. (N.T.
pp. 94-95) Prisbe took control of the situation and
sent information to other officers to help apprehend
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[Emerson]. (N.T. p. 97) Officer Anthony Fiore and a
few other officers approached the house into which
[Emerson] had fled. (N.T. p. 107) When told that
[Emerson] was hiding behind the house, Fiore
searched the yard with a flashlight. (N.T. p. 107)
Fiore found [Emerson], who then jumped a fence
and fled. (N.T. p. 108) [Emerson] ran approximately
two blocks south, crossed both Thompson and Derry
streets, then ran west on Drummond Street. (N.T.
pp. 108-09) After turning north toward Derry Street,
[Emerson] was apprehended by several officers.
(N.T. p. 109)
After his apprehension, [Emerson] was
noncompliant. (N.T. p. 132) Officer Fiore attempted
to search [Emerson], while [Emerson] screamed in
Fiore's face. (N.T. pp. 114, 138) Because [Emerson]
refused to comply, the officers placed [Emerson] on
his back to better control him. (N.T. pp. 115, 138-
39) While in this position, [Emerson] brought his
legs off the ground, striking Fiore in the face, and
brought one of his legs down on top of Fiore,
possibly trying to bring Fiore down. (N.T., pp. 115-
16, 138) Through his own testimony, [Emerson]
admitted that he struck officer Fiore. (N.T. p. 192) In
response to [Emerson]'s actions, the officers used
soft body blows to subdue him, completed the
search, and moved [Emerson] to the transport van.
(N.T. p. 116) Malave identified [Emerson] before
police booked him. (N.T. p. 134)
Officer Fiore testified that during his arrest
[Emerson] acted ‘like a lunatic,’ and that he
challenged the police to fight. (N.T. p. 111) Fiore
further testified that [Emerson] appeared to be
under the influence of drugs or alcohol, although
[Emerson] was not tested for either. (N.T. pp. 113-
14, 122) Officer Henry similarly testified that
[Emerson] screamed and challenged the officers to a
fight, and that [Emerson] acted as though
intoxicated. (N.T. pp. 130-31) Officer Donald Bender,
who booked [Emerson], testified that [Emerson] was
argumentative throughout the booking process, and
that he appeared intoxicated. (N.T. pp. 150-51)
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[Emerson] himself testified that he was ‘hysterical’
and admitted he was uncooperative throughout the
arrest and booking. (N.T. pp. 178, 191-93)
Trial Court Opinion, pp. 2-4. The jury found Emerson guilty of aggravated
assault against a police officer and resisting arrest but acquitted Emerson of
disorderly conduct and public drunkenness. The jury could not reach a
decision on the charge of flight to avoid apprehension, and the trial court
declared a mistrial on this charge. The trial court sentenced Emerson to 18-
48 months’ imprisonment on the aggravated assault charge and a
concurrent sentence of 1-2 years’ imprisonment on the resisting arrest
charge.
Emerson filed timely post-sentence motions challenging the weight of
the evidence on the aggravated assault and resisting arrest charges. The
trial court denied Emerson’s motions. Emerson filed a timely appeal, and
both Emerson and the trial court complied with Pa.R.A.P. 1925.
As stated above, the lone issue on appeal is whether Emerson’s
convictions are against the weight of the evidence. When reviewing such
claims, this Court’s role is not to consider the underlying question of whether
the verdict was against the weight of the evidence. Commonwealth v.
Kane, 10 A.3d 327, 332-333 (Pa.Super.2010). Instead, we must decide if
the trial court palpably abused its discretion when ruling on the weight
claim. Id. In performing this task, we must remember that the initial
determination regarding the weight of the evidence is for the factfinder, who
is free to believe all, some or none of the evidence. Id. We must not
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reverse a verdict based on a weight claim unless that verdict was contrary to
the evidence so as to shock one's sense of justice. Id. Moreover, “[a]n
abuse of discretion is not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law.” Id.An individual commits aggravated assault against a police officer when
he attempts to cause or intentionally or knowingly causes bodily injury to a
police officer. 18 Pa.C.S. § 2702(a)(3), (c)(1). Intentionally punching a
police officer in the jaw and kicking her stomach constitutes aggravated
assault against a police officer. Commonwealth v. Petaccio, 764 A.2d
582, 585-86 (Pa.Super.2000).
In this case, police officers arrested Emerson shortly after a brawl
outside a bar. During the arrest, Emerson kicked Officer Fiore in the face
and then slammed his leg down on top of Officer Fiore in an attempt to bring
him down. Officer Fiore testified as to these facts, and Emerson himself
admitted kicking Officer Fiore. N.T., pp. 191-92. Officer Henry testified that
Emerson acted “like a lunatic” and challenged the police to fight. Thus,
there was unrebutted evidence of Emerson’s intentional and violent acts
against Officer Fiore. Based on this evidence, the trial court acted within its
discretion by concluding that the weight of the evidence supported the
verdict of aggravated assault against a police officer.
We reach the same conclusion with regard to Emerson’s conviction for
resisting arrest. To prevail on this charge, the prosecution must show that
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the defendant, with intent to prevent an officer from effecting a lawful
arrest, creates a substantial risk of bodily injury to the officer or acts in such
a manner that require substantial force to overcome. 18 Pa.C.S. § 5104. In
this case, Emerson fled from police officers who were attempting to
apprehend him, kicked Officer Fiore in the face, forced multiple officers to
subdue him with soft body blows, screamed at officers throughout the
arrest, and challenged them to a fight. Based on this evidence, the trial
court acted within its discretion by concluding that the weight of the
evidence supported the verdict of resisting arrest.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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