J-A26007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KWANE CUFF,
Appellant No. 2160 MDA 2013
Appeal from the Judgment of Sentence October 15, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001389-2013
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 10, 2014
Kwane Cuff appeals from the judgment of sentence of twelve months
probation imposed by the trial court after a jury found him guilty of resisting
arrest and disorderly conduct. After careful review, we reverse.
Officer James Hawkins of the Harrisburg police was on routine patrol
with his canine partner at 3:30 a.m. on February 15, 2013, when he
received a call from another officer reporting approximately ten shots fired in
a high crime area with numerous drug-related shootings. An additional
citizen reported hearing shots fired in the area. Officer Anthony Fiore heard
the same calls. Neither the citizen nor the officer who originally reported the
shots could give a description of the shooter or shooters because they did
not see the incident. Both Officer Hawkins and Officer Fiore responded to
the general vicinity. When Officer Fiore arrived, he heard additional shots. J-A26007-14
Officer Hawkins observed a vehicle legally parked with its dome light on and
radioed Officer Fiore that he was going to check the vehicle to determine if it
was related to the call of shots fired. The two officers then traveled together
in their own vehicles toward the car.
As Officer Hawkins approached, he saw Appellant standing outside of
the car and another individual in the passenger seat. Officer Hawkins
activated his high beams and illuminated the vehicle with his spotlights. At
that point, he believed the person inside the car was an individual whom he
knew had been convicted of several firearms violations.1 The person inside
the car then exited and, according to Officer Hawkins, both men “started to
step away in the opposite direction where [he] was parked in front of their
vehicle.” N.T., 10/15/13, at 45. According to Officer Hawkins, “one or two”
steps were taken away from the officer’s direction. Id.
Officer Hawkins exited his car with his canine and ordered the men not
to run and instructed them that they were not free to leave. Officer Fiore
alighted from his car with his weapon drawn and directed the men to move
to the front of their vehicle. Officer Fiore detained the passenger who
originally was inside the car. The officer placed that man in handcuffs and
performed a pat-down search. Officer Fiore did not recover anything from
____________________________________________
1 This initial belief proved to be incorrect.
-2- J-A26007-14
him. As Officer Fiore sat the person down, Appellant began to loudly swear
at Officer Hawkins and demand that he get the dog away from him.
Officer Fiore asked Appellant to cease yelling. Appellant refused, and
Officer Fiore attempted to inform Appellant that he was going to frisk
Appellant for officer safety. Appellant continued to scream at the officers
and as Officer Fiore tried to frisk him, Appellant “tensed up his upper body
and he pulled away from [Officer Fiore’s] grasp and then started to turn.”
Id. at 64. Officer Fiore took Appellant to the ground. There was a “brief
struggle” which “didn’t last very long at all” before Officer Fiore placed him
in handcuffs and under arrest. Id. at 65. Appellant continued his profanity-
laced tirade and threatened to sue the officers. As a result, several
individuals exited a house, which was Appellant’s residence, and also
became involved in the verbal altercation. No contraband or weapons were
found on Appellant and police did not search the vehicle.
The Commonwealth charged Appellant with disorderly conduct and
resisting arrest. Appellant filed a pre-trial habeas corpus motion and a
motion to suppress. The court denied those motions and the matter
proceeded to a jury trial. The jury found Appellant guilty of the
aforementioned charges. The court sentenced Appellant to two concurrent
terms of twelve months probation. This timely appeal ensued. The court
directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant complied, and the trial court
-3- J-A26007-14
authored its opinion. The matter is now ready for our review. Appellant
presents four issues for this Court’s consideration.
I. Whether the trial court erred in instructing the jury to consider elements of the crime of disorderly conduct for which Appellant was not charged?
II. Whether the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt that Appellant committed the crime of disorderly conduct where:
A) the Commonwealth failed to prove that Appellant acted with the intent to cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof, and
B) the Commonwealth failed to prove that Appellant created a hazardous or physically offensive condition by an act which serves no legitimate purpose?
III. Whether the evidence at trial was insufficient to prove that Appellant committed the crime of resisting arrest where the Commonwealth failed to prove beyond a reasonable doubt:
A) that Appellant created a substantial risk of bodily injury or resisted arrest by means justifying or requiring substantial force to overcome his resistance; and
B) that there was an underlying lawful arrest?
IV. Whether the trial court erred in denying Appellant’s [m]otion to [s]uppress where Appellant was illegally detained without probable cause or reasonable suspicion in violation of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution?
Appellant’s brief at 7-8.
-4- J-A26007-14
At the outset, we address Appellant’s sufficiency of the evidence
arguments since a successful sufficiency challenge warrants discharge rather
than a new trial. Commonwealth v. Torrito, 67 A.3d 29, 33 (Pa.Super.
2013) (en banc); Commonwealth v. Breighner, 684 A.2d 143 (Pa.Super.
1996) (en banc). Appellant’s initial sufficiency claim relates to his disorderly
conduct conviction. We view all of the evidence admitted, even improperly
admitted evidence, in conducting a sufficiency review. Commonwealth v.
Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such
evidence in a light most favorable to the Commonwealth as the verdict
winner, drawing all reasonable inferences from the evidence in favor of the
Commonwealth. Id. When evidence exists to allow the fact-finder to
determine beyond a reasonable doubt each element of the crimes charged,
the sufficiency claim will fail. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. In addition, the Commonwealth can prove its case by circumstantial
evidence. Where “the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined
circumstances[,]” a defendant is entitled to relief. This Court is not
permitted “to re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id.
-5- J-A26007-14
The Commonwealth charged Appellant with disorderly conduct under
18 Pa.C.S. § 5503(a)(4). That provision provides,
(a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
18 Pa.C.S. § 5503(a)(4). In addition, where the defendant acts with the
intent “to cause substantial harm or serious inconvenience, or if he persists
in disorderly conduct after reasonable warning or request to desist[,] the
offense is graded as a misdemeanor of the third degree. 18 Pa.C.S.
§ 5503(b). Here, the Commonwealth charged Appellant with the third-
degree misdemeanor offense. The statute also defines the term “public.”
Pursuant to 18 Pa.C.S. § 5503(c), “the word ‘public’ means affecting or likely
to affect persons in a place to which the public or a substantial group has
access; among the places included are highways, transport facilities,
schools, prisons, apartment houses, places of business or amusement, any
neighborhood, or any premises which are open to the public.”
Appellant acknowledges that the Commonwealth’s evidence
established that he cursed and threatened to sue police. However, he
maintains that, “[t]here was no evidence that any members of the public
were around to witness the incident or that Appellant’s apparent yelling
created a public disturbance or inconvenience.” Appellant’s brief at 22-23.
Appellant continues that there were only four houses on the street, which
-6- J-A26007-14
was a dead-end street, and the members of his own family did not exit the
house until after police arrested him.
Appellant also submits that the Commonwealth did not prove that his
actions created a hazardous or physically offensive condition. Appellant
recognizes that the phrase “physically offensive condition” includes setting
off a stink bomb, strewing rotten garbage in public, shining blinding lights
into the eyes of the public, and invading the physical privacy of an
individual. See Commonwealth v. Williams, 574 A.2d 1161 (Pa.Super.
1990). Nonetheless, he contends that his swearing at police, and arguing
about being handcuffed and searched did not create a physically offensive
condition.
The Commonwealth rejoins that Appellant’s verbal tirade at 3:30 a.m.
in a residential area caused a public disturbance. It argues further that
Appellant’s actions “put the officers in jeopardy by further charging an
already tense situation, raised awareness that police were in the area, and
brought more people out into a potentially harmful situation as the officers
were conducting an investigation of a gun being fired in the area.”
Commonwealth’s brief at 20.
Viewing the evidence in a light most favorable to the Commonwealth,
we find that the Commonwealth established that Appellant intended to cause
public annoyance or alarm and recklessly created a risk of such annoyance
or alarm. At 3:30 a.m., Appellant, on a public street, repeatedly began to
-7- J-A26007-14
loudly swear and verbally abuse police despite repeated attempts to calm
him down. It is a reasonable inference from the record that Appellant
intended to draw public attention to both himself and the police, thereby
causing public alarm by screaming profusely at the police during the early
morning hours of the day. In doing so, Appellant’s actions created a
hazardous condition since the officers were investigating a report of multiple
shots fired. Here, Appellant’s yelling may have alerted the culprits of the
shots fired to the presence of police, endangering both the police and the
community. See Williams, supra at 1164 (“A ‘hazardous condition’ is a
condition that involves danger or risk.”). Further, it prevented the police
from continuing their investigation into the shooting. Accordingly, we hold
that Appellant’s disorderly conduct sufficiency claim does not entitle him to
relief.
Appellant also challenges the sufficiency of the evidence relative to his
resisting arrest conviction. To be found guilty of resisting arrest, the
Commonwealth must prove that the individual, “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
-8- J-A26007-14
overcome the resistance.” 18 Pa.C.S. § 5104.2 Running away, arguing with,
or minor scuffling with police is insufficient. See Commonwealth v. Miller,
475 A.2d 145 (Pa.Super. 1984) (fleeing from police alone is not resisting
arrest, flight must expose officers to substantial danger); Comment to 18
Pa.C.S. § 5104 (“This section changes existing law somewhat by not
2 Under modern Pennsylvania law, one has no right to resist arrest, even if the arrest is unlawful. See Commonwealth v. Biagini, 655 A.2d 492 (Pa. 1995); 18 Pa.C.S. § 505(b)(1)(i). This was a change in the common law that dated to the early days of the American republic. See Andrew P. Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting Individual Freedom?, 46 Drake L.Rev. 383 (1997). The United States Supreme Court in John Bad Elk v. U.S., 177 U.S. 529, 535, (1900), outlined that at common law, “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” The United States Supreme Court also recognized in Wolf v. Colorado, 338 U.S. 25 (1949), overruled in part on other ground, Mapp v. Ohio, 367 U.S. 643 (1961), that “One may also without liability use force to resist an unlawful search.” Wolf, supra at 33 n.1 (citing Commonwealth v. Martin, 105 Mass. 178 (1870); State v. Mann, 27 N.C. 45 (1844)); cf. State v. Curtis, 2 N.C. 471 (1797) (“as the officer did not tell Curtis for what he arrested him, and the warrant he had was not under seal, Curtis who resisted, and beat him for making the arrest, was acquitted.”); Coyle v. Hurtin, 10 John 85 (N.Y. 1813); State v. Worley, 33 N.C. 242, 243 (1850) (“a seal is essential to every warrant, issued by a magistrate to arrest any person upon a criminal charge. If there be no seal, the precept is void and affords no protection to the officer attempting to execute it; and, if its execution is resisted by the defendant, he is guilty of no offence against the law, though, in doing so, the person of the officer be assaulted.”); State v. Crocker, 1874 Del. LEXIS 16.
-9- J-A26007-14
extending to minor scuffling which occasionally takes place during an
arrest.”); Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super. 1981).3
Appellant first asserts that he did not create a substantial risk of bodily
injury or resist by means justifying or requiring substantial force against
him. In this respect, he highlights that Officer Fiore testified that Appellant
tensed his upper body, pulled away from the officer, and started to turn
away from Officer Fiore. Further, he points out that although a “brief
struggle” occurred on the ground, Officer Fiore handcuffed Appellant without
assistance. Appellant maintains that this minor scuffle does not rise to
resisting arrest. In support, he relies on Rainey, supra.
In Rainey, an inebriated Rainey believed he had entered his friend’s
apartment and used the bathroom therein. However, his friend had moved ____________________________________________
3 We are cognizant that the jury was instructed that running away, arguing with police, and minor scuffling with police is not resisting arrest. We add that the resisting arrest statute is “derived from” the Model Penal Code. Comment to 18 Pa.C.S. § 5104. The comment to the Model Penal Code provision reads in relevant part,
This provision covers a person who, for the purpose of preventing a lawful arrest, “creates a substantial risk of bodily injury” or “employs means justifying or requiring substantial force to overcome the resistance.” This language exempts from liability nonviolent refusal to submit to arrest and such minor acts of resistance as running from a policeman or trying to shake free of his grasp. The policy judgment underlying this curtailment of coverage is that authorizing criminal punishment for every trivial act of resistance would invite abusive prosecution.
Comment to Model Penal Code § 242.2 (emphasis added).
- 10 - J-A26007-14
and no longer resided at the apartment. Rainey then passed out on the floor
of the apartment. The resident of the apartment above telephoned police
after hearing the toilet flush. Police responded and awakened Rainey to
place him under arrest. Rainey attempted to leave but was restrained by
the officer. A second officer then entered the apartment and placed Rainey
against a wall and frisked him. That officer then transported the appellant to
a police van. Upon reaching the police vehicle, Rainey attempted to flee.
The officer grabbed the appellant and he “began to shake himself violently,
to wiggle and squirm in an attempt to free himself of the officer's grasp.”
Rainey, supra at 1149.
A third officer arrived and struck Rainey in the head with a nightstick.
Rainey continued to struggle, and one officer began to choke Rainey in an
attempt to subdue him, but relented when Rainey could not breathe. The
original officer who responded, and who had been interviewing the person
who called police, returned to aid his fellow officers. The three officers were
then able to handcuff Rainey. At trial, the testimony was that Rainey
“merely attempted to squirm, wiggle, twist and shake his way free of their
grasp.” Id. This Court found insufficient evidence to find Rainey guilty of
resisting arrest.
In Appellant’s view, his actions were not as “violent or resistive as the
actions of the defendant in Rainey.” Appellant’s brief at 30. Appellant adds
that there was no proof of an underlying lawful arrest. He correctly notes
- 11 - J-A26007-14
that Officer Fiore testified that he did not inform Appellant that he was under
arrest and that the officer’s initial attempt at handcuffing Appellant was not
to place him under arrest, but was for purposes of a Terry frisk. According
to Appellant, he was only placed under arrest after he struggled with the
officer. Since the officer was not putting Appellant under arrest for
disorderly conduct at the time he resisted, Appellant contends that his
resisting arrest conviction is improper. Lastly, with respect to his resisting
arrest charge, Appellant asserts that the officer did not have reasonable
suspicion to conduct a Terry frisk or probable cause for the initial detention.
Thus, the purpose for handcuffing him was not lawful and he could not be
convicted of resisting arrest.
The Commonwealth counters, without discussion, that Rainey is
distinguishable. It adds that Rainey “has little precedential value.”
Commonwealth’s brief at 21. According to the Commonwealth, this Court’s
decisions in Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super. 1989),
and Commonwealth v. Butler, 512 A.2d 667 (Pa.Super. 1986), support
the verdict. In Lyons, deputy sheriffs attempted to arrest the defendant.
Lyons, in an attempt to elude capture, “ran into the middle of Lycoming
Creek and attempted to swim downstream with the current.” Lyons, supra
at 925. The temperature of the creek was frigid and it “had a slippery
streambed and a swift current.” Id. Two deputy sheriffs pursued Lyons into
the creek. One deputy sheriff, “after three unsuccessful attempts, managed
- 12 - J-A26007-14
to get a grip of [Lyons] who was kicking and struggling to get away.” Id.
(italics in original). Two officers then secured Lyons, but he “went limp,
pulled his feet underneath him, refused to walk, and became rigid.” Id.
Thus, the sheriffs had to carry him.
This Court opined that resisting arrest “does not require serious bodily
injury. Nor does it require actual injury to the arresting officer.” Id. The
panel set forth that sufficient evidence of resisting arrest may exist where
“the arrestee's actions created a substantial risk of bodily injury to the
arresting officer.” Id. The Lyons Court held that Lyons’ “struggle with the
two deputies in the middle of a frigid stream with a rocky uneven bed was
sufficient to meet that requirement.” Id. It added that the resisting arrest
statute “includes the disjunctive phrase ‘or employs means justifying or
requiring substantial force to overcome resistance.’ [Lyons’] actions
unquestionably fall within the ambit of this portion of the statute. It took
four deputy sheriffs to finally subdue appellant. Substantial force was thus
required to overcome appellant's resistance to the arrest.”
In Butler, the defendant snatched four gold chains from a woman’s
neck in broad daylight and knocked her to the ground. The victim’s friend,
who witnessed the robbery, screamed. A young man responded to the cry
and gave chase. The victim and her friend then flagged down a police
officer. The young male who chased Butler returned and informed the
officer that the assailant was hiding behind a wall one block away. The
- 13 - J-A26007-14
officer went to that area, cornered Butler, and instructed him not to move.
Butler, however, punched the officer and attempted to flee. Several other
officers had to subdue the defendant. The Butler Court reasoned that,
because “it took the assistance of other officers to subdue [Butler,]” and the
officer testified that he was punched, the Commonwealth presented
sufficient evidence of resisting arrest.
We find that neither Lyons nor Butler is dispositive. In both cases,
the defendant exercised more force and resistance. Further, in Lyons, there
was no legitimate question as to the lawfulness of the arrest. Initially, we
agree with Appellant that the evidence against him does not establish that
he was being lawfully placed under arrest for disorderly conduct at the time
Officer Fiore brought him to the ground. There is no testimony that
Appellant was being arrested for disorderly conduct when he began to resist.
Both Officer Fiore and Officer Hawkins testified that Appellant was subject to
an investigative detention and Appellant was not being arrested for
disorderly conduct. However, a person may also be convicted of resisting
arrest if his or her conduct, with the intent of preventing an officer from
discharging a duty, creates a substantial risk of bodily injury or resists to
such a degree as to require substantial force to subdue the defendant.
The question necessarily arises as to whether the officers were
discharging their duty in performing a Terry frisk and whether the statute
requires that the frisk be lawful in order to trigger the resisting arrest
- 14 - J-A26007-14
offense. We hold, consistent with the requirement of a lawful arrest, that an
officer must be lawfully discharging the duty in question, which may include
an investigative detention and Terry frisk. See Commonwealth v.
Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (where officer had
reasonable suspicion to conduct an investigative detention the defendant’s
actions of struggling with the officer and striking him using his left and right
shoulders and cursing was sufficient evidence of resisting arrest);
Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa.Super. 2006)
(sufficient evidence to convict of resisting arrest where police had reasonable
suspicion to detain individual exiting a convenience store and defendant
pushed an officer while carrying a handgun and then resisted apprehension
by violently struggling with an officer, mule-kicked the officer twice, and
attempted to retrieve his own weapon); Commonwealth v. Jackson, 907
A.2d 540, 546 (Pa.Super. 2006) (defendant kicked officer during lawful
investigative detention); Commonwealth v. Maxon, 798 A.2d 761
(Pa.Super. 2002) (absence of reasonable suspicion for investigative
detention rendered evidence insufficient for resisting arrest conviction).
An investigative detention subjects an individual to a stop and short
period of detention. Commonwealth v. Downey, 39 A.3d 401, 405
(Pa.Super. 2012). This seizure does not involve actions that are so coercive
as to comprise the equivalent of an arrest. Id. To conduct an investigative
detention, police must have reasonable suspicion of criminal activity. Id.
- 15 - J-A26007-14
“[T]his standard is met ‘if the police officer's reasonable and articulable
belief that criminal activity was afoot is linked with his observation of
suspicious or irregular behavior on behalf of the particular defendant
stopped.’” Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.
1992). It is well-settled that “[m]ere presence near a high crime area or in
the vicinity of a recently reported crime, is not enough to warrant a Terry
stop.” Id. Rather, police “must observe irregular behavior before he
initiates a stop and, concurrently to his observation, he must hold a belief
that criminal activity is afoot.” Id. We determine what level of interaction
occurred under a totality of the circumstances test. Commonwealth v.
Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).
In the present case, police received a call of shots fired in a high crime
area at 3:30 a.m. No description of the individual or individuals who fired
the shots was provided. Upon responding to the area, police observed
Appellant and another individual in a legally parked car with the dome light
on. When the police approached, the two men took a step or two away from
the car. This combination of facts is insufficient to support a reasonable and
articulable belief that Appellant and his companion were engaged in criminal
activity. Police did not observe irregular or suspicious behavior by Appellant.
Thus, the initial investigative detention was unlawful and cannot support the
resisting arrest charge. Cf. Maxon, supra.
- 16 - J-A26007-14
Even assuming arguendo that the totality of the circumstances
warranted the initial detention for a Terry frisk, we find that Appellant did
not create a substantial risk of bodily injury or resist by means justifying or
requiring substantial force to subdue him. Instantly, Appellant stiffened his
upper body, and stepped and turned away from the officer. None of these
actions rises to the level of creating a substantial risk of bodily injury. See
Commonwealth v. Eberhardt, 450 A.2d 651 (Pa.Super. 1982). Further,
they did not require or justify substantial force to overcome them. Of
course, Appellant also “briefly struggled” with Officer Fiore after the officer
took him to the ground. See N.T., 10/15/13, at 65. Probable cause for a
lawful arrest may arise after an initial unlawful arrest, or in this case, an
invalid investigatory detention. Cf. Commonwealth v. Jackson, 924 A.2d
618 (Pa. 2007).
In Jackson, 924 A.2d 618, a police officer saw Jackson with a group
of men throwing dice on the street. Believing that the men were engaged in
illegal gambling, the officer approached. Jackson fled, and the officer
pursued. The officer caught Jackson, but Jackson punched him in the face
and chest several times and eluded capture. However, the officer again was
able to catch Jackson. Jackson kneed the officer in the groin, causing the
officer to go to the ground. Jackson then attempted to wrestle the officer’s
gun away from him. The officer, nonetheless, succeeded in overpowering
Jackson and placed him under arrest.
- 17 - J-A26007-14
On appeal to this Court, Jackson challenged his resisting arrest
conviction and a charge not relevant hereto. This Court reversed his
resisting arrest conviction on the ground that there was no lawful arrest.
Our Supreme Court granted allowance of appeal to determine whether “a
defendant's assault on a police officer [which] occurs as the result of the
officer's attempt to unlawfully arrest him, . . . may give rise to a lawful
arrest, the resistance of which will support a charge of resisting arrest under
18 Pa.C.S. § 5104.” Id. at 619–620. The High Court ruled that once
Jackson first attacked the officer, the officer had probable cause to arrest
him for aggravated assault and that Jackson’s continued fighting constituted
resisting arrest. The Supreme Court’s Jackson decision is distinguishable
since it involved more violent actions and comprised a scenario where the
defendant resisted the officer’s attempts to arrest him during multiple
encounters. Simply put, in Jackson, 924 A.2d 618, there was
unquestionably probable cause to arrest the defendant for aggravated
assault after the original significant scuffle, and the defendant continued to
violently resist.
While we agree that Officer Fiore was justified in using the amount of
force he did, the facts viewed in a light most favorable to the Commonwealth
establish only that a minor scuffle with Officer Fiore occurred. See Rainey,
supra. This case is wholly dissimilar from the cases relied on by the
Commonwealth, Lyons and Butler.
- 18 - J-A26007-14
We recognize that the resisting arrest statute “does not require the
aggressive use of force such as striking or kicking of the officer.” Miller,
supra at 146; Commonwealth v. McDonald, 17 A.3d 1282, 1285
(Pa.Super. 2011) (quoting Miller, supra). However, it does mandate that
the forcible resistance used by the defendant involve some substantial
danger to the officer. Miller, supra at 146. In this case, there is no
testimony that Appellant punched, struck, kicked, spit upon, shoved, used
his shoulders to strike, or used an amount of force justifying or requiring
substantial force to place him in handcuffs. Compare Commonwealth v.
Franklin, 69 A.3d 719 (Pa.Super. 2013) (defendant’s swinging of his fists at
police and continually yanking his arms away from officer constituted violent
and tumultuous behavior); McDonald, supra (resistance by defendant
required deployment of taser); Commonwealth v. Thompson, 922 A.2d
926 (Pa.Super. 2007) (couples’ interlocking of arms and legs on the ground
to prevent handcuffing required substantial force to pull them apart leaving
officer exhausted); Stevenson, supra at 775 (defendant pushed officer,
violently struggled with the officer, and mule-kicked him twice); Jackson,
907 A.2d at 546 (defendant kicked officer); Lyons, supra (defendant kicked
and struggled in freezing cold creek with deputy sheriffs requiring two
sheriffs to subdue him); Commonwealth v. Guerrisi, 443 A.2d 818
(Pa.Super. 1982) (defendant struck officer in the groin); Miller, supra at
147 (defendant was “attacking police[,]” flailed his arms and upper part of
- 19 - J-A26007-14
his body in a rapid fashion, “push[ed] through” an officer, strained and
struggled against the police and bruised an officer’s leg). In short, we
conclude that Appellant’s actions did not justify or require substantial force
to overcome his limited resistance. Accordingly, the Commonwealth failed
to prove that Appellant statutorily resisted arrest, and he is entitled to
discharge on that count.
Having addressed Appellant’s sufficiency claims, we now examine his
first issue. Appellant contends, and we agree, that the trial court erred in
instructing the jury as to elements of disorderly conduct for which Appellant
was not charged. In the present case, the Commonwealth only charged
Appellant under 18 Pa.C.S. § 5503(a)(4). Nevertheless, the court issued a
standard jury instruction that included elements of disorderly conduct with
which Appellant was not charged.
Specifically, the trial court instructed the jury that it could find
Appellant guilty of disorderly conduct if it found that:
The defendant committed one of the following acts: That he either engaged in fighting or threatening or in violent or tumultuous behavior. Such conduct included actions and words that are directed at producing or inciting imminent lawless action, or an immediate violent response given the circumstances under which it occurred, or that the defendant made unreasonable noise.
You must consider the circumstances in which the Defendant is alleged to have made the noise in question to determine if it was outside conventional standards of organized society.
- 20 - J-A26007-14
Then secondly, ladies and gentlemen, that the defendant did so, did one of those actions, with the intent to cause public inconvenience, annoyance or alarm, or by his actions recklessly created a risk of public inconvenience, annoyance or alarm, and that he persisted in such disorderly conduct after reason warning or request to desist.
The word public, as I have used it, means affecting or likely to affect persons in a place in which the public or substantial group has access.
N.T., 10/15/13, at 98-99. Critically, Appellant was not charged with
disorderly conduct under the sections related to engaging in fighting or
threatening or violent or tumultuous behavior. See Criminal Information,
Second Count, 6/13/13 (Appellant “did, with the intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
create a hazardous or physically offensive condition by any act which serves
no legitimate purpose of the defendant. The defendant acted with the intent
to cause substantial harm or serious inconvenience or did persist in his
conduct after reasonable warning or request to desist.”); see also 18
Pa.Crim.P. 5503(a)(1). Moreover, the Commonwealth did not charge
Appellant with violating the provision of the disorderly conduct statute
relative to noise. See 18 Pa.C.S. § 5503(a)(2). Rather, the criminal
information in this matter pertained only to the aspect of the disorderly
conduct statute relative to creating a hazardous or physically offensive
condition. 18 Pa.C.S. § 5503(a)(4).
The Commonwealth’s argument that the court issued a standard jury
instruction is a non-sequitur. A court may issue a standard jury instruction,
- 21 - J-A26007-14
but if it instructs a jury on crimes or elements not charged, it is error unless
the crime for which the defendant is convicted is a lesser-included offense.
Cf. Commonwealth v. Gouse, 429 A.2d 1129 (Pa.Super. 1981); compare
also Commonwealth v. Shamsud-Din, 995 A.2d 1224 (Pa.Super. 2010).
Here, we do not find that the disorderly conduct provision in question is a
lesser-included offense of the other disorderly conduct charges since the
elements of the differing disorderly conduct provisions are distinct. Cf.
Commonwealth v. Brandon, 79 A.3d 1192 (Pa.Super. 2013). The court’s
instruction was legal error. Accordingly, we reverse Appellant’s disorderly
conduct conviction.
Since we have found that insufficient evidence was introduced to
establish resisting arrest, and that a new trial is necessary as to the
disorderly conduct count, we need not reach Appellant’s final issue. We
observe only that Appellant’s final challenge is to a suppression ruling, and
because there was nothing found on his person or in his car, there was
nothing to suppress. While in the early days of the American republic one
could be successfully discharged based on an illegal arrest via a habeas
corpus motion, see Commonwealth v. Alexander, 6 Binn. 176 (Pa. 1813),
one cannot suppress an illegal detention. See Commonwealth v.
Standen, 675 A.2d 1273, 1276 (Pa.Super. 1996) (“A person is not a
suppressible fruit and any illegality of detention cannot deprive the
- 22 - J-A26007-14
government of the opportunity to prove guilt through the introduction of
evidence wholly untainted by the police misconduct.”).
Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/10/2014
- 23 -