Com. v. Crosby, J.

J-A06002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JARREN CROSBY :
:
Appellant : No. 176 WDA 2022
Appeal from the Judgment of Sentence Entered November 1, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004015-2020
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: May 9, 2023
Appellant, Jarren Crosby, appeals from the judgment of sentence
entered in the Court of Common Pleas of Allegheny County on November 1,
2021, as made final by the denial of his post-sentence motion on January 21,
2022. We affirm Appellant’s judgment of sentence, but remand for the
correction of a scrivener’s error.
The trial court summarized the relevant facts of this case as follows:
On May 8, 2020, at 6:04 p.m., the Frazier Police Department
received a 9-1-1 dispatch call for a rollover vehicle accident.
Sergeant Aaron Scott and Officer Samuel Greco responded to
the accident. … Sergeant Scott testified that upon arrival, he
observed a black Ford Fusion overturned in a grassy patch
beyond the curb. [Appellant] and LeAnn Evans were outside of
the vehicle, and [] Evans was talking on a cellular telephone.
Sergeant Scott asked who was operating the vehicle, and
[Appellant] stated that he was [the operator]. Sergeant Scott
then asked if there were any injuries, to which [Appellant]
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* Retired Senior Judge assigned to the Superior Court.
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stated he had some back soreness. Neither [Appellant] or []
Evans would provide the officers with identification or their
name.
While speaking with [Appellant], Sergeant Scott noticed that he
had bloodshot and glassy eyes and there was an odor of
marijuana emanating from [Appellant] and the [Ford] Fusion.
Officer Greco testified that [Appellant] appeared “to be under
the influence of some sort of drug or controlled substance.”
***
Due to the accident, and [the officer’s] physical observations,
Sergeant Scott and Officer Greco advised [Appellant] and Evans
that they were going to be detained while they investigated
[Appellant for driving under the influence (“DUI”)]. At that
time, Officer Greco testified that [Appellant] became “very
angry at [the officer’s] questions to identify himself and he
refused to sit back down on the curb.” Officer Greco then began
to place [Appellant] in handcuffs. After Officer Greco had one
arm into a handcuff, [Appellant] refused to cooperate and
began to scream and pull away. … Officer Greco then put
[Appellant] onto the ground in a continued effort to put
[Appellant] into handcuffs, and [Appellant] continued his
resistance. Ultimately, [Appellant] provided Officer Greco with
his arm after use of a “dry stun” from Officer Greco’s [T]aser.
[Appellant] did not participate in any standardized field sobriety
tests and he refused to submit to a blood draw.
Trial Court Opinion, 4/26/22, at 4-6. Thereafter, on August 12, 2020, the
Commonwealth charged Appellant with one count of DUI of alcohol or a
controlled substance; one count of recklessly endangering another person
(“REAP”); one count of resisting arrest; one count of disorderly conduct; one
count of false identification to law enforcement; and two summary offenses,
careless driving and driving at a safe speed.
Appellant was set to proceed to trial on November 1, 2021.
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[On the day of trial, however,] the Commonwealth requested a
continuance . . . so that a written motion to amend the criminal
information could be filed. Over [Appellant’s] objection, the
request for continuance was granted. Shortly thereafter, the
parties advised the [trial court] that they wanted to proceed,
and an oral motion to amend the criminal information was
placed on the record. Specifically, the Commonwealth
requested that [the original charge set forth in count one, 75
Pa.C.S.A. § 3802(a)(1),] be amended to be charged under 75
Pa.C.S.A. § 3802(d)(2), an ungraded misdemeanor, as it was
alleged that [Appellant] was operating the vehicle under the
influence of a controlled substance and not alcoholic beverages.
Counsel for [Appellant] did not object to the oral request to
amend the information, and the Commonwealth’s motion was
granted.
Thereafter, the matter proceeded to a non-jury trial. At the
conclusion of the Commonwealth’s case-in-chief, []the trial
court granted [Appellant’s] motion for judgment of acquittal as
to the count of [REAP. Then, at] the conclusion of the evidence,
[Appellant] was found guilty of [DUI – controlled substance1],
resisting arrest,[2] and careless driving.[3] [Appellant] was found
not guilty of disorderly conduct, false identification to law
enforcement, and driving at a safe speed.
Trial Court Opinion, 4/26/22, at 2-3 (footnotes added) (superfluous
capitalization omitted). After trial, Appellant waived his right to a
pre-sentence report and the matter proceeded to sentencing. Appellant was
sentenced, in the aggregate, to serve four days in the DUI Alternative to Jail
Program, 15 months’ probation, and to pay fines and court costs. N.T. Trial,
11/1/21, at 95-95.
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1 75 Pa.C.S.A. § 3802(d)(2).
2 18 Pa.C.S.A. § 5104.
3 75 Pa.C.S.A. § 3714(a).
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On November 9, 2021, Appellant filed a post-sentence motion for
judgment of acquittal and a motion to stay his sentence. On January 21,
2022, the trial court denied Appellant’s post-sentence motion, but granted
Appellant’s motion to stay his sentence, pending appeal. See Trial Court
Order, 1/21/22, at 1; see also Trial Court Order 1/21/22, at 1. This timely
appeal followed.
Appellant raises the following issues on appeal:
1. Whether the evidence was insufficient to convict [Appellant]
of DUI where the Commonwealth failed to prove, beyond a
reasonable doubt, that he was incapable of driving as a result
of consuming drugs?
2. Whether the evidence was insufficient to convict [Appellant]
of [r]esisting [a]rrest where the Commonwealth failed to
prove, beyond a reasonable doubt, that he created a
substantial risk of bodily injury to the police officers?
Appellant’s Brief at 6.
Herein, Appellant challenges the sufficiency of the evidence to support
his convictions for DUI – controlled substance and resisting arrest. Our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of evidence
is whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact[-]finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth may not
preclude every possibility of innocence. Any doubts regarding
a defendant's guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter of law
no probability of fact may be drawn from the combined
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circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated
and all evidence actually received must be considered. Finally,
the trier 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.
Commonwealth v. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)
(citations omitted).
In his first issue, Appellant argues that the Commonwealth presented
insufficient evidence to sustain his conviction for DUI – controlled substance.
Appellant’s Brief at 15-23. In sum, Appellant claims that the Commonwealth
failed to “demonstrate that [his] blood shot eyes, slurred speech,
unsteadiness, and erratic behavior [resulted from his] use of marijuana, as
opposed to the product of the accident itself.” Id. at 22. Appellant’s claim
lacks merit.
Section 3802 of the Motor Vehicle Code in relevant part, provides,
(d) Controlled substances. --An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual's ability to safely drive, operate or be in actual
physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(d)(2). “[T]o convict a defendant under this section, the
Commonwealth must establish three elements: [(1)] that the defendant
drove; [(2)] while under the influence of a controlled substance; and [(3)] to
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a degree that impairs the defendant's ability to drive safely.”
Commonwealth v. Spence, 290 A.3d 301, 309 (Pa. Super. 2023), citing
Commonwealth v. Griffith, 32 A.3d 1232, 1239 (Pa. 2011). Importantly,
this Court has previously held that “[e]vidence of consumption of a drug,
standing alone, is insufficient to prove impairment.” Spence, 290 A.3d. at
309 (citation omitted). “Instead, impairment evidence should be drawn from
the totality of the factual circumstances.” Id., citing Commonwealth v.
DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010).
Here, both Sergeant Scott and Officer Greco testified during Appellant’s
trial. Sergeant Scott, who has approximately 11 years’ experience, testified
that, on the day in question, he and Officer Greco responded to an emergency
call which reported a single-vehicle rollover accident. N.T. Trial, 11/1/21, at
15-16. Sergeant Scott also explained that, at the time of the accident, there
“was no weather-related condition that would have contributed to the
accident.” Trial Court Opinion, 4/26/22, at 8; see also N.T. Trial, 11/1/21,
at 25. When the officers arrived, they observed Appellant’s Ford Fusion
overturned, with Appellant and Evans outside of the vehicle. Id. at 18. The
officers approached Appellant, who identified himself as the driver upon
questioning. Id. At that time, the officer’s testified they detected the smell
of marijuana about Appellant’s person, as well as the Ford Fusion. Id. at 18
and 49. In addition, Sergeant Scott testified Appellant had bloodshot, glassy
eyes. Id. at 19. Moreover, Officer Greco stated that Appellant “seemed to
be under the influence of some sort of drug or controlled substance” because
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he was not “answering [Officer Greco’s] questions . . . [his] speech [] was . .
. very slurred,” he “had a very difficult time walking or staying standing,” and
was “unable to focus on one thing.” Id. at 49. Based upon Officer Greco’s
observations, he attempted to arrest Appellant, but Appellant failed to
cooperate, requiring the use of a Taser. Id. at 49-50. Appellant also refused
to submit to field testing or a blood test. Id. at 50-51.
Upon review, we conclude that the Commonwealth presented sufficient
evidence to sustain Appellant’s conviction under Subsection 3802(d)(2).
Indeed, the testimony clearly indicated that Appellant drove the Ford Fusion
and that, on a clear day, Appellant was involved in a single-vehicle rollover
accident. In addition, the testimony demonstrated that, upon approaching
Appellant, the officers smelled marijuana emanating from Appellant’s person
and the Ford Fusion and that Appellant had glassy and bloodshot eyes, slurred
speech and a difficult time walking or standing. As this Court previously
indicated, such testimony is sufficient to sustain a conviction for
DUI - controlled substance. See DiPanfilo, 993 A.2d at 1268-1269(explaining that the evidence was sufficient to sustain the appellant’s
conviction under Subsection 3802(d)(2) after he was in a single-vehicle
accident, failed to cooperate with police, and the officer testified that the
appellant “appeared very lethargic, [moved] very slow, his speech was slurred
and his skin had a grey appearance”); see also Commonwealth v.
Hutchins, 42 A.3d 302, 308-309 (Pa. Super. 2021) (holding that, “even
without the consideration of [the a]ppellant’s blood test result,” evidence that
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the appellant had an “unusually calm demeanor” despite his daughters’
injuries; the officer detected the smell of marijuana emanating from the
appellant’s vehicle; and the fact that the accident was undoubtedly the
appellant’s fault was sufficient to sustain the appellant’s conviction under
Subsection 3802(d)(2)). Therefore, weighing all the evidence in the light most
favorable to the Commonwealth, as required, we conclude that there was
sufficient evidence to sustain Appellant’s conviction under Subsection
3802(d)(2).4
In his second issue, Appellant challenges his conviction for resisting
arrest. Specifically, Appellant claims that the evidence presented at trial
simply demonstrated that, incident to his arrest, Appellant and the police
officer simply engaged in a “’minor scuffle’” and that Appellant “attempted to
free himself from the officer’s grasp[].” Appellant’s Brief at 27 (citations
omitted). Again, Appellant’s claim lacks merit.
Section 5104 of the Pennsylvania Crimes Code defines resisting arrest
or law enforcement as,
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
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4 The written sentencing order states Appellant was convicted and sentenced
under 75 Pa.C.S.A. § 3802(a)(1), not 75 Pa.C.S.A. § 3802(d)(2). See Trial
Court Sentencing Order, at 1. In its 1925(a) opinion, the trial court indicated
that this was a scrivener’s error. See Trial Court Opinion, 4/26/22, at 6-8.
Accordingly, while we affirm Appellant’s conviction under Subsection
3802(d)(2), we remand to permit the trial court to resentence Appellant and
correct this scrivener’s error. See Commonwealth v. Williams, 519 A.2d
971, 974 (Pa. Super. 1986).
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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. Stated another way, “Section 5104 criminalizes two
types of conduct intended to prevent a lawful arrest: the creation of a
substantial risk of bodily injury to the officer or anyone else or means justifying
or requiring a substantial force to overcome.” Commonwealth v. Soto, 202
A.3d 80, 95 (Pa. Super. 2018) (citations omitted), appeal denied, 207 A.3d
291 (Pa. 2019). Importantly, this Court previously explained that even
evidence of “passive resistance requiring substantial force to overcome” will
provide sufficient evidence for upholding a conviction for resisting arrest.
Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007); see
also Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011).
Herein, Officer Greco testified regarding the circumstances of
Appellant’s arrest. Specifically, he stated:
I was able to get one arm into a handcuff. As soon as I put
hands on him, he started to scream and pull away from me. It
sounded like he was screaming at somebody on the phone
because he was hard to talk to. I attempted to get his other
hand into the handcuff, and it was not going well, so I took it
upon myself to take him to the ground and then still try to get
the handcuffs on him. He refused to give me his other hand, at
which point I pulled my Taser out, pulled the cartridge out and
did a dry stun close to his ear as a use of force, saying “[g]ive
me your hand now,” at which point he complied and gave me
his hand, and I was able to place him into custody.
N.T. Trial, 11/1/21, at 49-50.
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A review of Officer Greco’s testimony reveals that, even though the
altercation may not have created a risk of substantial injury to Officer Greco
or others, Officer Greco needed to employ “substantial force to overcome
[Appellant’s] resistance” and effectuate an arrest. 18. Pa.C.S.A. § 5104.
Indeed, Officer Greco had to take Appellant to the ground and deploy a Taser
to place Appellant in handcuffs. Contrary to Appellant’s claims, such
testimony is sufficient to sustain a conviction for resisting arrest. See
Thompson, 922 A.2d at 928 (“Appellant's argument completely ignores the
statutory language of [S]ection 5104 criminalizing resistance behavior that
requires substantial force to surmount.”); see also Commonwealth v.
Clark, 761 A.2d 190, 193 (Pa. Super. 2000) (sustaining the appellant’s
conviction for resisting arrest when the evidence demonstrated that the
appellant “took a fighting stance, the officer had to pepper spray [him], and
then chase him down traffic lanes before apprehending him”). In light of the
foregoing, we conclude that the Commonwealth presented sufficient evidence
to support the conviction of resisting arrest.
Judgment of sentence affirmed. Case remanded to correct sentencing
order. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2023
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