Com. v. Gregory, J.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2024
• Docket: 998 WDA 2023
• Status: Unpublished

Opinion

J-A13030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH PEAIR GREGORY : : Appellant : No. 998 WDA 2023

Appeal from the Judgment of Sentence Entered June 28, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002345-2022

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY SULLIVAN, J.: FILED: July 15, 2024

Joseph Peair Gregory (“Gregory”) appeals from the judgment of

sentence following his jury convictions of aggravated assault, escape, resisting

arrest, false identification to law enforcement, possession of a controlled

substance, and possession of drug paraphernalia, and his non-jury convictions

of the summary offenses of criminal mischief and operating a vehicle without

inspection.1 For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter from

our review of the certified record. City of Erie Patrolman Terrance Dawdy

(“Patrolman Dawdy”) and Corporal Dustin Landfried (“Corporal Landfried”)

were on routine patrol in the early evening hours in July 2022, when they

____________________________________________

1 See 18 Pa.C.S.A. §§ 2702(a)(3), 5121(a), 5104, 4914(a), 35 P.S. §§ 780-

113(a)(16), (32), 18 Pa.C.S.A. § 3304(a)(2), 75 Pa.C.S.A. § 4703(a)(1). J-A13030-24

observed a vehicle, later determined to be driven by Gregory, with an expired

registration sticker. See N.T., 4/12/23, at 21-23; N.T., 4/13/23 (morning

session), at 13-14. Corporal Landfried activated the marked police car’s lights

and sirens and effected a motor vehicle stop. See N.T., 4/12/23, at 23; N.T.,

4/13/23 (morning session), at 14. Both police officers were in uniform with

their body cameras (“body cams”) and the police car’s dashboard camera

(“dash cam”) activated. See N.T., 4/12/23, at 22, 25. As the officers

approached the vehicle, a second police car occupied by Patrolman Luke

DeHart (“Patrolman DeHart”), Sergeant Bielak (“Sergeant Bielak”), and

Patrolman Rhodes (“Patrolman Rhodes)2 arrived at the scene. See id. at 27-

33.

After Gregory gave Corporal Landfried his vehicle and driver

identification, Corporal Landfried asked him to get out of the car and received

Gregory’s permission to search the vehicle. See Commonwealth’s Exhibits 1

and 4 (Body Cam Videos of Patrolman Dawdy and Corporal Landfried).

Patrolman DeHart, Sergeant Bielak, and Patrolman Rhodes, stood with

Gregory in front of one of the police vehicles during the search. See

Commonwealth Exhibit 2 (Dash Cam Video). When Corporal Landfried

2 Sergeant Bielak and Patrolman Rhodes’s first names are not contained in the

certified record.

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discovered documents in the car which showed Gregory had given him false

identification information, he asked the other officers to detain Gregory. See

Commonwealth Exhibit 3 (Body Cam Video of Patrolman DeHart).

Gregory began running away. See Commonwealth Exhibits 2 and 3

(Dash Cam Video and Body Cam Video of Patrolman DeHart); see also N.T.,

4/12/23, at 42-43. Patrolman DeHart chased after him, tackling Gregory;

during the “take-down,” Patrolman DeHart injured his elbow. See id. at 42-

45. Other officers came to assist Patrolman DeHart, and Gregory struggled

with the four police officers who were attempting to handcuff him. See id.

Even after the police officers forcibly handcuffed him, Gregory continued to

try to push himself up and away from the officers. See id.

Following an April 2023 jury trial, the jury convicted Gregory of the

above-cited offenses, other than the summary offense of which the trial court

convicted him. The trial court sentenced Gregory to an aggregate sentence

of two to five years in prison to be followed by one year of probation. Gregory

filed post-sentence motions, which the trial court denied. The instant, timely

appeal followed.3

On appeal, Gregory raises three issues for our review:

1. Did the Commonwealth present sufficient evidence to sustain [Gregory’s] conviction for aggravated assault as the evidence

3 Gregory and the trial court complied with Pa.R.A.P. 1925.

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of record does not establish [Gregory] acted intentionally or knowingly or that [Officer DeHart] sustained bodily injury?

2. Did the Commonwealth present sufficient evidence to sustain [Gregory’s] conviction for resisting arrest as [Gregory’s] actions did not create a substantial risk of bodily injury or employ means requiring substantial force to overcome?

3. Did the trial court illegally subject [Gregory] to the heightened penalty for simple possession of marijuana where the facts supported a conviction for possession of a small amount of marijuana [“SAM”]?

Gregory’s Brief at 8 (capitalization regularized).

In his first two issues, Gregory challenges the sufficiency of the evidence

underlying his convictions for aggravated assault and resisting arrest. See

Gregory’s Brief at 20-27.

Pertinently:

[w]e review claims regarding the sufficiency of the evidence by considering 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. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact— while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact[]finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal

citations and quotation marks omitted). A defendant commits aggravated

assault of a law enforcement officer when he “either attempted to cause, or

intentionally or knowingly caused, bodily injury to [the officer].”

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Commonwealth v. Brown, 212 A.3d 1076, 1084 (Pa. Super. 2019); see

also 18 Pa.C.S.A. §§ 2702(a)(3), (c)(1). The Commonwealth is not required

to prove the officer was injured, only that the defendant attempted to cause

injury. See id. “The Commonwealth may prove a defendant’s intent to inflict

injury by circumstances which reasonably suggest his intention.” Id.

(citations and internal quotation marks omitted).

An individual resists arrest when

with the intent of preventing a public servant from effecting a lawful arrest . . . the person creates a substantial risk of bodily injury to the public servant . . . or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S.A. § 5104. This Court has stated:

[A] valid charge of resisting arrest requires an underlying lawful arrest, which, in turn, requires that the arresting officer possess probable cause. 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. Clemens, 242 A.3d 659, 666 (Pa. Super. 2020) (internal

citations and quotation marks omitted).

Gregory first maintains the evidence was insufficient to sustain his

conviction for aggravated assault. See Gregory’s Brief at 20- 25. Gregory

argues there was “no evidence . . . [he] intentionally sought to cause bodily

injury to [Patrolman DeHart].” Id. at 22. Gregory claims it was not

“practically certain” his action in attempting to escape would cause bodily

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injury to an officer. See id. at 23. Instead, Gregory contends Patrolman

DeHart suffered the injury “because he chose to subdue [Gregory] in the

manner that he did.” Id. Lastly, Gregory avers Patrolman DeHart’s “elbow

injury did not constitute ‘bodily injury’ as contemplated by the statute.” Id.

The trial court disagreed, explaining:

[a]t trial, the jury saw the video of [Gregory’s] behavior, and heard Officer DeHart describe the injury to his elbow. The jury thereafter concluded that [Gregory] was guilty of aggravated assault. The jury was given the legal requirements for aggravated assault and "bodily injury”, and obviously concluded that Officer DeHart suffered such injury. The [trial c]ourt therefore concludes that the jury had a reasonable basis to find [Gregory] guilty of aggravated assault.

Trial Court Opinion and Order, 8/19/23, at 2.

This Court has thoroughly reviewed both the testimony and the body

cam videos and finds no error in the trial court’s denial of Gregory’s sufficiency

claim. The videos demonstrate Gregory chose to try to escape by pushing

through three police officers and running. See Commonwealth Exhibits 2 and

3 (Dash Cam Video and Body Cam Video of Patrolman DeHart). Gregory

should have foreseen that one of the officers may sustain bodily injury after

Gregory chose to flee and the officers pursued him. We reject Gregory’s

argument Patrolmen DeHart was responsible for his own injury because of the

“manner” in which he attempted to recapture Gregory; it is certainly not for

Gregory to prescribe the manner in which a fleeing suspect shall be subdued.

Lastly, we note both the videos and testimonial evidence show Officer DeHart

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bleeding following Gregory’s capture, and he testified his elbow remained

bruised and painful for over one week. See id.; see also N.T., 4/12/23, at

44-45, 48. The evidence was sufficient to sustain Gregory’s conviction for

aggravated assault of an officer. See Brown, 212 A.3d at 1084 (holding the

evidence was sufficient to sustain a conviction pursuant to 18 Pa.C.S.A. §

2702(a)(3) where defendant was hostile, argumentative, refused to obey

commands, and punched an officer in the chest); see also Commonwealth

v. Hatch, 314 A.3d 928, 933-34 (Pa. Super. 2024) (reversing the trial court

and holding evidence was sufficient to state a prima facie case under 18

Pa.C.S.A. § 2702(a)(3) where defendant screamed at the officer and slammed

a screen door to prevent the officer’s entry into her home, hitting the officer’s

shoulder, then while he attempted to detain her, pushed him, and swung at

his face, scratching him). Gregory’s first issue does not merit relief.

Gregory also alleges the evidence was insufficient to sustain his

conviction for resisting arrest. See Gregory’s Brief at 25-27. Gregory does

not dispute that the police had probable cause to arrest him. See id. Further,

Gregory acknowledges he attempted to escape from police, and once

recaptured, “kept trying to get away, push his way off the ground, and did not

immediately put his hands behind his back.” Id. at 26. However, because

the police were able to quickly subdue him, he maintains his behavior did not

constitute resisting arrest but rather a mere “scuffle.” Id. at 26-27.

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The trial court disagreed:

[t]he jury watched on video the interaction between the police and [Gregory], including scenes of several officers struggling with [Gregory]. The jury thereafter concluded that [Gregory’s] actions constituted resisting arrest. The [trial c]ourt finds that there was sufficient evidence to support the jury’s decision.

Trial Court Opinion and Order, 8/19/23, at 3.

The record and relevant law support Gregory’s conviction. We have

reviewed the videos which show that, upon hearing he was going to be

detained, Gregory immediately broke into a run, and pushed past three police

officers. See Commonwealth Exhibits 1, 2, and 3 (Body Cam Video of

Patrolman Dawdy, Dash Cam Video, Body Cam Video of Patrolman DeHart).

When tackled, Gregory refused to comply with police commands, keeping his

arms under his stomach and pushing up to try to dislodge the officers. See

id. It took two police officers to get Gregory’s hands in a position to be

handcuffed and he struggled with the officers throughout the process. See

id. Even when in handcuffs, Gregory continued to try to push up and get

away and it required four police officers, two holding his arms, and two sitting

on his calves, to subdue him. See id. This evidence is sufficient to sustain a

conviction for resisting arrest. See Clemens, 242 A.3d at 667 (holding the

evidence was sufficient to sustain a conviction for resisting arrest where police

had probable cause to arrest and where appellant refused to leave his vehicle

requiring the police to physically extract him); Commonwealth v. Coleman,

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19 A.3d 1111, 1118 (Pa. Super. 2011) (holding the evidence was sufficient to

sustain a conviction for resisting arrest where defendant refused to remove

his hand from his pocket and “struggled” with the police officer when he tried

to remove it); Commonwealth v. McDonald, 17 A.3d 1282, 1285-86 (Pa.

Super. 2011) (holding the evidence was sufficient to sustain a conviction for

resisting arrest where defendant tried to flee the scene; it took multiple police,

officers to hold him down; defendant kept trying to push up; and police had

difficulty handcuffing him). Gregory’s second issue does not merit relief.

In his third issue, Gregory claims his sentence for simple possession of

marijuana is illegal. See Gregory’s Brief at 27-29. Gregory admits that,

contrary to the rules of issue preservation,4 he is raising this issue for the first

time on appeal, but maintains it is a non-waivable, legality challenge. See id.

at 27-28. Specifically, while acknowledging his sentence of one year of

probation is within the statutory limits, Gregory argues his sentence for simple

possession of marijuana is nonetheless illegal because the evidence at trial

better supported a conviction for SAM. See id. at 28-29. To support his

challenge to the legality of sentence, Gregory relies on this Court’s decision in

Commonwealth v. Tisdale, 100 A.3d 216, 219 (Pa. Super. 2014). However,

this reliance is misplaced.

4 See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii).

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Tisdale is not a legality of sentence case. See id. at 217. In Tisdale,

the Commonwealth charged Tisdale with possession with intent to deliver

(“PWID”) and conspiracy. See id. at 218. The trial court acquitted Tisdale of

PWID but convicted him of a non-charged offense, simple possession of

marijuana. See id. Tisdale objected to the verdict, arguing that both simple

possession and SAM were lesser-included offenses of PWID and based upon

the stipulated weight of the marijuana in question, the court should have

convicted him of SAM. See id. This Court agreed, holding that under the

specific/general rule the Court should have convicted Tisdale of PWID. See

id.

The instant matter is simply inapposite. Here, the Commonwealth

charged Gregory with simple possession of marijuana. See Criminal

Information, 11/7/22, at 2 (unnumbered). The jury convicted Gregory of

simple possession of marijuana. See N.T., 4/13/23 (afternoon session), at 5.

Following the reading of the verdict, Gregory moved for a judgment of

acquittal only as to the aggravated assault charge. See id. at 6-7. In his

post-sentence motions, Gregory again moved for judgment of acquittal as to

aggravated assault and challenged the sufficiency of the evidence underlying

his escape, resisting arrest, and criminal mischief charges. See Gregory’s

Post-Sentence Motion, 7/3/23, at 3-7. He did not raise any challenge to his

conviction for simple possession. See id. Gregory does not cite to any legal

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support for his argument that it was illegal for the trial court to sentence him

on a charge that the jury convicted him of when he never challenged the

verdict of the specific charge. See Gregory’s Brief at 27-29. Thus, we

conclude Gregory’s final issue is a waivable challenge to the legality of

sentence and Gregory waived the claim by not raising it below or in his Rule

1925(b) statement. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii).

Gregory’s claims are either waived or not meritorious. Accordingly, we

affirm the judgment of sentence.

Affirmed.

DATE: 07/15/2024

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