Com. v. Royster, D.

J-S32043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEREK LEE ROYSTER, :
:
Appellant : No. 181 WDA 2015
Appeal from the Judgment of Sentence entered on January 15, 2015
in the Court of Common Pleas of Fayette County,
Criminal Division, No. CP-26-CR-0000267-2014
BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2015
Derek Lee Royster (“Royster”) appeals from the judgment of sentence
imposed following his conviction of disorderly conduct, graded as a third-
degree misdemeanor (hereinafter “disorderly conduct - M3”), and resisting
arrest.1 We affirm.
The trial court summarized the relevant facts as follows:
On January 20, 2014, a commuter bus operated by James
Thomas [“Thomas”] of Fayette Area Coordinated Transportation
(“FACT”) was making a routine stop at the White Swan
Apartments in Uniontown around 2:00 p.m. Upon making the
stop, [] Thomas encountered [Royster] waiting for the bus.
About a week prior to January 20, [Royster had] boarded []
Thomas’[s] FACT bus and was “playing his radio as loud as it
would go” with no headphones. [Royster] did not initially
comply with [] Thomas’[s] request to turn off the music, and
instead, told Thomas to, “Just move the bus.” [Royster]
continued to aggravate the situation by exchanging words with
1
18 Pa.C.S.A. §§ 5503(a)(1) and (b), 5104.
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[] Thomas when Thomas exited the bus at the end of his shift,
prompting [] Thomas to write an incident report.
Based on this prior incident, Thomas advised [Royster] on
January 20 that he was willing to give him a second chance.
[Royster] responded, “l don’t want to hear anything you have to
say. Just move the bus.” Thomas then replied that [Royster]
needed to exit the bus or Thomas was going to call the police.
[Royster] refused to remove himself from the bus[,] so Thomas
called the police for assistance[, and pulled the bus to the side of
the roadway].
Arriving on scene were Officer [John] Kauer [“Officer
Kauer,” as well as Officer] Defoor and Chief Cox of the
Uniontown Police Department. Officer Kauer entered the bus to
speak with [Royster] about what had transpired so far. As the
officer walked towards the back of the bus, [Royster] stood up,
pointed, and said he wanted the bus moved. Despite Officer
Kauer’s attempts to de-escalate the situation, [Royster]
repeatedly demanded to move the bus and was being “loud” and
“combative.” Officer Kauer became concerned [regarding] some
elderly bus passengers who appeared visibly upset by
[Royster’s] behavior.
At this time, Officer Kauer advised [Royster that] he was
placing him under arrest for disorderly conduct. Again,
[Royster] refused to comply with [the] officer[’s] instruction, and
grabbed onto the support bar located near the seats. [Royster]
“refused to let go of the bar” and was struggling with police and
yelling. Chief Cox and Officer Defoor had now entered the bus
to assist Officer Kauer in securing [Royster]. All three police
officers were trying to get [Royster’s] hands loose and placed
behind his back, but he “continued to struggle.” Finally, after a
“considerable amount of time,” the three officers were able to
secure [Royster] and remove him from the bus.
[Royster] was charged with three counts: resisting arrest,
false identification to law enforcement, and disorderly conduct
[- M3]. A jury trial was held before th[e trial c]ourt on
December 11-12, 2014, and [Royster] was found guilty on all
counts except [] false identification.
Trial Court Opinion, 3/9/15, at 2-3 (citations to record omitted).
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On January 15, 2015, the trial court sentenced Royster to a two-year
period of probation, and imposed fines and costs. Royster did not file any
post-sentence motions.
Royster timely filed a Notice of Appeal. In response, the trial court
ordered Royster to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. After Royster timely filed a Concise Statement,
the trial court issued an Opinion.
Royster presents the following issue for our review: “Whether the
evidence was legally and factually insufficient to prove that [Royster] was
guilty of resisting arrest and disorderly conduct?” Brief for Appellant at 8
(capitalization omitted).
Royster argues that the Commonwealth failed to present sufficient
evidence for the jury to properly convict him of disorderly conduct - M3, and
resisting arrest. Id. at 17-18.2 Royster contends that his conduct did not
meet the elements and mens rea necessary to convict him of disorderly
conduct - M3 because “the Commonwealth [did not] establish that his intent
was to cause public inconvenience, annoyance or alarm.” Id. at 18; see
also 18 Pa.C.S.A. § 5503(a)(1) and (b). Royster further asserts that
because no valid arrest for disorderly conduct could be made, his conviction
2
We observe that Royster includes in his Argument section case citations
that pertain to weight of the evidence claims. See Brief for Appellant at 14-
16. However, the sole issue identified in his Statement of Questions
Involved section, and his Rule 1925(b) Concise Statement, is a sufficiency of
the evidence challenge, not a weight of the evidence challenge.
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of resisting arrest is therefore also improper. Brief for Appellant at 17-18.
In any event, according to Royster, his resisting arrest conviction is not
supported by sufficient evidence because “there was no evidence presented
that [he] created a substantial risk of bodily injury to the police.” Id. at 18.
The standard we apply in reviewing the sufficiency of the evidence is
whether, viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, and all reasonable inferences drawn
therefrom, there is sufficient evidence to enable the fact-finder to find every
element of the offense beyond a reasonable doubt. Commonwealth v.
Thompson, 922 A.2d 926, 928 (Pa. Super. 2007). In applying this test, we
may not weigh the evidence and substitute our judgment for that of the fact-
finder. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).
Additionally, “the finder 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.” Id. at 40 (citation omitted).
In order to sustain a conviction for resisting arrest under section 5104,
the Commonwealth must establish that a defendant intended to prevent an
officer from effectuating a lawful arrest or discharging any other duty, and
either that the defendant (1) created a substantial risk of bodily injury to an
officer or anyone else; or (2) employed means of resistance that justified or
required substantial force to overcome the resistance. 18 Pa.C.S.A. § 5104.
The Crimes Code provides that “[a] person is guilty of disorderly conduct
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[- M3] if, with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he … engages in fighting or threatening, or
in violent or tumultuous behavior[,]” and “the intent of the actor [wa]s to
cause substantial harm or serious inconvenience, or if he persist[ed] in
disorderly conduct after reasonable warning or request to desist.” Id.
§ 5503(a)(1) and (b).
Here, the record reflects that Royster refused to exit the FACT bus
despite Thomas’s repeated requests. N.T., 12/11/14, at 19-20. Thomas
testified that even after he had stopped the bus and advised Royster that he
had called the police, Royster insisted that he would not leave. Id. at 20.
When the police arrived, there were still several passengers seated on the
bus who, according to Thomas, were “irritated” by the delay caused by
Royster. Id.
Officer Kauer testified that when he boarded the bus to speak with
Royster, Royster was standing up, demanding that someone move the bus,
and was “loud” and “combative.” Id. at 28-29. Officer Kauer stated that he
repeatedly had attempted to de-escalate the situation and calm Royster;
however, Royster refused to exit the bus, and continued to demand that it
be moved. Id. at 29-30, 32. Offer Kauer even offered to drive Royster to
wherever he needed to go, but Royster was unrelenting. Id. at 30. Royster
also refused to sit down at Officer Kauer’s request, and refused to provide
the officer proper identification. Id. at 30-31. Moreover, Officer Kauer
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testified that Royster’s unruly behavior was alarming to a point whereby
some of the elderly passengers on the bus were becoming “visibly upset.”
Id. at 30. At this point, Officer Kauer advised Royster that he was under
arrest for disorderly conduct. Id. at 33, 36. Officer Kauer described what
transpired thereafter:
[Royster] grabbed on – there is a bar there …. [H]e grabs the
bar and he refuses to let go of the bar, and he is tussling with
us[, i.e., Officer Kauer and the two back-up officers on the bus],
and he is yelling something. We are trying to get his hands
loose and trying to get his hands behind his back to secure him,
and he just continued to struggle with us.
Id. at 33. Officer Kauer testified that it took the efforts of all three officers
to place Royster in handcuffs. Id. Officer Kauer stated that “[i]t took a
considerable amount of time [to secure Royster], … a lot more than l am
accustomed to.” Id.
First, regarding Royster’s conviction of disorderly conduct - M3, the
above facts presented at trial provided sufficient evidence for the jury to
find, beyond a reasonable doubt, that Royster “recklessly creat[ed] a risk” of
“caus[ing] public inconvenience, annoyance or alarm” by “engag[ing] in …
tumultuous behavior[,]” and “he persist[ed] in disorderly conduct after
reasonable warning or request to desist.” 18 Pa.C.S.A. § 5503(a)(1) and
(b). The evidence reflects that Royster’s tumultuous and unruly behavior
caused public inconvenience and alarm to the other passengers on the bus,
and he persisted with his “loud” and “combative” conduct despite Officer
Kauer’s repeated attempts to diffuse the situation. See Thompson, 922
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A.2d at 929 (upholding the defendant’s conviction of disorderly conduct -
M3, where she “willfully created a serious inconvenience at the parking
garage and made unreasonable noise after the officers attempted to diffuse
the situation.”); Commonwealth v. Schwartz, 615 A.2d 350, 361 (Pa.
Super. 1992) (affirming the defendant’s conviction for disorderly conduct -
M3, where he had continued to scream at police and the victim, despite the
officer’s warning to be quiet); see also In the Interest of R.P., 918 A.2d
115, 121 (Pa. Super. 2007) (holding that there was probable cause to arrest
the defendant for disorderly conduct - M3, where, after an altercation on a
school bus, the defendant was uncooperative, combative and loud while
being escorted away by police, and he attempted to pull away from the
officers).
Likewise, the above-mentioned facts were sufficient for the jury to find
that Royster acted with the “intent of preventing a public servant from
effecting a lawful arrest … [and did so by] … employ[ing] means … requiring
substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.3 It took
three police officers “a considerable amount of time” to secure Royster’s
hands, and he resisted their efforts to make a lawful arrest for disorderly
conduct by struggling and yelling. See Thompson, 922 A.2d at 928
3
Contrary to Royster’s argument, it is not required for a conviction of
resisting arrest for the Commonwealth to present evidence that that he
created a substantial risk of bodily injury to the police. Royster ignores the
language of section 5104 concerning resistance behavior that justified or
required substantial force to overcome.
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(holding that the evidence was sufficient to support the defendant’s resisting
arrest conviction where, after being informed by police that she was under
arrest for disorderly conduct, she “interlocked her arms and legs” around her
husband, thus requiring that the officer use “substantial force to overcome
the resistance” to effectuate the arrest); Commonwealth v. Schwenk, 777
A.2d 1149, 1154-55 (Pa. Super. 2001) (upholding the defendant’s conviction
for resisting arrest where, inter alia, he struggled and resisted the attempts
of two police officers to place him in handcuffs, requiring force to subdue
him).
Viewing the evidence in the light favorable to the Commonwealth, we
conclude that there was ample evidence presented to sustain Royster’s
convictions of resisting arrest and disorderly conduct - M3.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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