Com. v. Love, M.

Superior Court of Pennsylvania

Com. v. Love, M.

DecidedNovember 23, 2015

Docket3529 EDA 2014

StatusUnpublished

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Bluebook

Com. v. Love, M., (Pa. Ct. App. 2015).

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Opinion

J. A25044/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : MIKE LOVE, : : Appellant : No. 3529 EDA 2014

Appeal from the Judgment of Sentence December 4, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0002828-2014

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 23, 2015

Appellant, Mike Love, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas after he was found guilty

of simple assault, aggravated assault of police officer, ethnic intimidation,

and resisting arrest.1 Appellant challenges the sufficiency of the evidence

underlying all convictions. We affirm.

Appellant was involved in an altercation with undercover Philadelphia

police officers who were surveilling a bar for narcotics activities. N.T.,

9/25/14, at 6. Appellant was with group of males in front of a bar. Id. at 7-

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2701(a)(1), 2702(a)(3), 2710(a), 5104. Appellant was charged with a felony-two aggravated assault under 18 Pa.C.S. § 2702(a). At trial, the parties and the trial court discussed the charge in light of 18 Pa.C.S. § 2702(a)(3). See N.T. Trial, 9/25/14, at 55; Trial Ct. Op., 2/2/15, at 5. J.A25044/15

8. The officers were across the street from the bar. Id. at 5. All of the

officers were Caucasian and were in plainclothes. Id. at 6, 8. Appellant’s

race is listed as “black” throughout the record.

A review of the record in a light most favorable to the Commonwealth2

reveals the following. Appellant and the males in front of the bar began

calling the officers “fucking crackers”3 and “white boys.” Id. at 8. They told

the officers they did not “belong around there” and to “get off the corner.”

Id. at 8, 10. Appellant then crossed the street, confronted Sergeant Edward

Pisarek, and told him that they did not “belong on the corner,” they needed

to “get the fuck out of [t]here,” and it was “not cool that [they] were there.”

Id. at 10-12. The sergeant told Appellant that they were “not going

anywhere” and stated they were waiting for a girl. Id. at 9.

Appellant returned to the bar, and Sergeant Pisarek called for

uniformed officers to provide backup. Id. at 10. Appellant again crossed

the street and confronted another officer, “saying the same things . . . he

was saying [to the sergeant].” Id. at 11.

2 See Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (“our standard of review of sufficiency claims requires that we evaluate the record ‘in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence’”). 3 The trial court heard testimony that “cracker” is “a racist term for white people.” N.T. at 10.

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According to Sergeant Pisarek, he told Appellant they were police

officers and produced the badge he was wearing around his neck. Id. at 12-

13. As he “started to tell [Appellant] that [they were] cops,” Appellant

turned around and said, “All right. I got something for you, white boy,”

pulled up his shirt and “gestured towards his waistband.” Id. at 11. The

sergeant followed Appellant into the street, and lifted his hooded sweatshirt

to draw his service weapon. Id. at 12. Appellant turned around and

punched the sergeant in the face. Id. A uniformed officer, who responded

to the sergeant’s call for backup, tackled Appellant. Id. at 14-15. Appellant

continued to struggle with the two officers on the ground and was subdued

after three additional officers intervened and one officer used a taser.4 Id.

at 16.

4 Appellant testified at trial. He stated that he noticed three big guys across the street from the bar, went over to them, and asked if they were waiting for somebody. N.T. at 45. When they told him they were waiting for a female in a red Mustang, he returned to the bar, found the female, and took her outside. Id. at 46. She denied knowing them. Id. According to Appellant, he went back to the men and asked them to leave because they were “acting kind of creepy.” Id. They told him to “get the fuck out of here.” Id. Appellant asked them to “talk about it,” took two steps backwards, and was then punched by one of the men. Id. at 46-47. He was unaware that they were police officers and punched back. Id. Appellant identified the person who punched him as Sergeant Pisarek.

We note Appellant’s counsel also cross-examined Sergeant Pisarek using various reports prepared shortly after the incident, none of which referred to the use of racial slurs during the incident. Id. at 26. Further Appellant’s counsel elicited evidence that the police officers were all much larger than Appellant—Appellant being 5’8” and 170 pounds, while two of the undercover officers each were over 6’ and 260 pounds. Appellant argued

-3- J.A25044/15

The trial court found Appellant guilty of the aforementioned charges,5

and on December 4, 2014, sentenced him to “time in” to twenty-three

months’ imprisonment for ethnic intimidation and a consecutive five years’

probation for aggravated assault. Appellant filed a timely notice of appeal

and complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)

statement.

We summarize Appellant’s challenges to the sufficiency of the

evidence. First, as to the charges of aggravated and simple assault, he

emphasizes that he was unaware that Sergeant Pisarek was a police officer

until after the melee broke out. Appellant’s Brief at 13. He also asserts he

acted in self-defense, did not inflict bodily injury, and engaged in a mutual

affray. Id. at 14-15, 20-21. Second, he claims his ethnic intimidation

conviction must fail given the insufficient evidence for the predicate offenses

of assault. Id. at 23. Alternatively, he claims Sergeant Pisarek’s testimony

that Appellant used racial slurs was unworthy of belief because the post-

incident reports prepared by other officers did not indicate he used racial

slurs. Id. at 23-24. Third, he contends that his resisting arrest conviction

should be vacted because the underlying arrest was unlawful, id. at 27, and

this size disparity supported his theory that he was unaware they were officers and acted in self-defense after the sergeant followed him into the street. Id. at 55-56. 5 The trial court acquitted Appellant of recklessly endangering another person.

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his resistance fell “at the milder end of the spectrum” between “mild

resistance” and “directly assaultive behavior.” Id. at 28-29.

We have reviewed the record in light of Appellant’s arguments and the

governing standard of review and conclude the trial court ably addressed all

issues in its Rule 1925(b) opinion. See Trial Ct. Op. at 4 (setting forth

standard of review), 5, 7 (opining assault and aggravated assault convictions

proper because trial court (a) found sergeant’s testimony that he identified

himself as an officer credible, and (b) determined Appellant was aware he

was engaging a police officer), 5-6 (concluding law of self-defense against

officer’s unlawful use of force did not apply under circumstances), 8 (stating

racial intimidation conviction proper based on evidence of Appellant’s use of

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