In the Interest of Barry W.

621 A.2d 669, 423 Pa. Super. 549, 1993 Pa. Super. LEXIS 697
CourtSuperior Court of Pennsylvania
DecidedMarch 2, 1993
Docket2961
StatusPublished
Cited by15 cases

This text of 621 A.2d 669 (In the Interest of Barry W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of Barry W., 621 A.2d 669, 423 Pa. Super. 549, 1993 Pa. Super. LEXIS 697 (Pa. Ct. App. 1993).

Opinions

McEWEN, Judge.

This is an appeal from an order which adjudicated appellant delinquent based upon commission of the offenses of aggravated assault, 18 Pa.C.S. § 2702(a)(3), and resisting arrest, 18 Pa.C.S. § 5104. A divided panel of this Court found the evidence insufficient as to the offense of resisting arrest but affirmed the adjudication of delinquency on the basis of the charges of aggravated assault. This Court, in response to the petition for reargument filed by the Commonwealth and its contention that reargument was imperative in order to “have this Court confine itself to its proper role of appellate review of sufficiency of the evidence claims”, granted en banc review. We have engaged, pursuant to our prescribed standard of review, in a thorough review of the record and the applicable law, and again find the evidence insufficient to sustain the conviction for resisting arrest1, but affirm the order adjudicating appellant delinquent based upon the aggravated assault charges.

[552]*552The opinion of the distinguished Judge Frank X. O’Brien provides an accurate summary of the evidence presented by the Commonwealth at trial:2

On September 4, 1990, the defendant, Barry W., (d.o.b. 8/24/72) was tried and found guilty of aggravated assault, simple assault, and resisting arrest and adjudged delinquent. A post-trial motion for a new trial on grounds that there was insufficient evidence to show intent or knowledge under 18 Pa.C.S. § 2702(a)(3) (aggravated assault) or prohibited conduct under 18 Pa.C.S. § 5104 (resisting arrest) was denied on October 2, 1990.
Testimony at trial indicated that on August 6, 1990, at approximately 10:05 p.m., police officer David Ashby, while in a marked police vehicle with a partner, received a radio call: “Investigating (sic) male selling narcotics” at a specific location. Officer Ashby, in uniform, observed two (2) males standing on a corner at the designated location. He approached the two (2) males and said: “stop police”. The two (2) males, one being the defendant, began to run. Officer Ashby pursued the defendant in the belief that the latter was selling drugs and observed the defendant throw an object to another person which the officer believed was narcotics. Officer Ashby pursued on foot and his partner followed in the police vehicle. At that point, Officer Ashby and his partner were joined by uniformed police officers Mays and Borans.
Officer Ashby attempted to arrest and “cuff’ the defendant while Officer Delores Borans tried to hold defendant. At some point the defendant turned and struck Officer Borans. In the continuing struggle defendant then pushed Officer Borans with the flat of his hand into a truck parked a couple of feet away. As a result of the push Officer Borans fell against the rear of the truck and cut her hand on a broken window.

[553]*553Appellant first argues that the evidence is insufficient to establish the essential elements of the offense of resisting arrest, 18 Pa.C.S. § 5104, or aggravated assault, 18 Pa.C.S. § 2702(a)(3) since the Commonwealth’s evidence failed to establish that there had been a lawful arrest or that the arresting officer was “discharging any other public duty”. While we find the evidence sufficient as to the offense of aggravated assault, we find it insufficient to establish one of the essential elements of the offense of resisting arrest, specifically, that the arrest itself was lawful.

Our scope of review in an appeal involving a challenge to the sufficiency of the evidence is well-settled:

The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See: Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1267 (1989). Accord: Commonwealth v. Thomas, 522 Pa. 256, 262-64, 561 A.2d 699, 702 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 244-46, 546 A.2d 1101, 1105 (1992); Commonwealth v. Gaynor, 417 Pa.Super. 417, 419-21, 612 A.2d 1010, 1011 (1992); Commonwealth v. Sample, 270 Pa.Super. 47, 49-51, 410 A.2d 889, 891 (1979).

The Commonwealth, in its brief, characterizes the evidence produced at trial as follows:

The Commonwealth’s evidence in this case clearly met that standard. The officers here received a radio call of a male selling narcotics at a corner only three blocks from their location. A few minutes later, they pulled up in their marked patrol car and saw two males standing at the very corner named in the radio call. One of the uniformed [554]*554officers exited the car to investigate. At that moment, the two males, who were under a shelter, immediately fled into the driving rain. The officer ordered them to stop, but they continued to run from him. In flight, defendant tossed an object, which the officer believed to be drugs, to his cohort. The officer chased defendant and, after a struggle, subdued and handcuffed him.

While we agree with the Commonwealth that we are not free to substitute our view of the evidence for the factual findings of the trial court, the issue presented by the sufficiency challenge in this case involves the legal conclusion to be drawn from the facts found by the trial court. We as an appellate court are authorized, indeed required, to utilize a plenary scope of review in determining the validity of the legal conclusions made by the trial court.

The determination of whether probable cause or reasonable suspicion of criminal activity exists is a legal conclusion to be drawn from the facts as found by the suppression court. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Commonwealth v. Stubblefield, 413 Pa.Super. 429, 435, 605 A.2d 799, 802 (1992).

Thus, utilizing only the evidence presented by the Commonwealth 3, this Court must determine whether that evidence was [556]*556sufficient to establish each of the elements of the offense of resisting arrest and aggravated assault. Commonwealth v. Williamson, 582 Pa. 568, 616 A.2d 980 (1992).

Section 5104 of the Crimes Code provides:

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 substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

[557]*55718 Pa.C.S. § 5104. The eminent Justice Frank J. Montemuro, Jr., while still our colleague, clarified the essential elements of the offense of resisting arrest when he opined:

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In the Interest of Barry W.
621 A.2d 669 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
621 A.2d 669, 423 Pa. Super. 549, 1993 Pa. Super. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-barry-w-pasuperct-1993.