Com. v. Andress, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARK ALAN ANDRESS
Appellant No. 1147 WDA 2016
Appeal from the Judgment of Sentence July 12, 2016
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000403-2015
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2017
Mark Andress appeals from the judgment of sentence of three and
one-half to eleven years incarceration plus $13,314 in restitution imposed
following his convictions for, inter alia, aggravated assault. We affirm.
The facts are straightforward. At 7:09 a.m. on July 14, 2015,
Assistant Chief Michael Ward and Officer Clayton Yohe of the Bradford City
Police department were dispatched to an apartment for a reported domestic
violence incident. When they arrived, the victim Carol VanHorn told the
officers that Appellant, her boyfriend, had grabbed her and attempted to
shove her towards an open window. She feared being pushed out of the
window, so she dropped to the ground. Appellant then left the apartment.
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Both officers observed that Ms. VanHorn was crying and had fresh
markings on her skin. Appellant returned while the officers spoke to the
victim. He was visibly agitated and was shouting profanities. Chief Ward
asked Appellant to place his hands on the wall to pat him down for safety.
Appellant complied, and Officer Ward then told him that he would be placed
in restraints. Chief Ward tried to pull down Appellant’s arm to place him in
handcuffs, but Appellant spun and kicked him in the ankle. A struggle
ensued, and Appellant choked the officer for approximately one minute.
Appellant eventually released Chief Ward, who subsequently incurred
financial costs for the treatment of his ankle.
For these acts, Appellant was charged with two counts of aggravated
assault, both of which listed Chief Ward as the victim, in addition to the
following crimes: resisting arrest, two counts of simple assault—one each for
attacking Ms. VanHorn and Chief Ward—and one count of summary
harassment. Following a jury trial, Appellant was acquitted of one count of
aggravated assault, and convicted of all remaining charges.
Appellant filed timely post-sentence motions, which were denied. He
timely appealed, and both Appellant and the trial court complied with
Pa.R.A.P. 1925. The matter is ready for our review of Appellant’s two
issues.
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I. Was the evidence insufficient to support Defendant's
conviction for resisting arrest where the underlying arrest
was unlawful?
II. Was the sentencing court's imposition of restitution in
excess of $13,000.00 an illegal sentence because there
was no direct causal connection between the conduct
Defendant was held liable for and the damages suffered by
the victim?
Appellant’s brief at 4.
Appellant’s first claim attacks the sufficiency of the evidence to support
the charge of resisting arrest. Whether the evidence was sufficient to
sustain the charge presents a question of law. Our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Walls, 144
A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our
inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). The charge
of resisting arrest is defined as follows:
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.
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18 Pa.C.S. § 5104. Therefore, to sustain a conviction for resisting arrest,
the Commonwealth must establish that the arrest was lawful, which we have
held requires a showing “that the arresting officer possess probable cause.”
Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999) (citing
Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa. 1995)).
Appellant’s sufficiency challenge is limited to that element. He
maintains that nothing was found during the pat down and therefore the
officers lacked probable cause to effectuate an arrest. We disagree, as
statutory authority existed to arrest Appellant for simple assault. Pursuant
to 18 Pa.C.S. § 2711, Ms. VanHorn’s account, as corroborated by the
officer’s observations, supplied the necessary probable cause.
(a) General rule.--A police officer shall have the same right of
arrest without a warrant as in a felony whenever he has
probable cause to believe the defendant has violated section
2504 (relating to involuntary manslaughter), 2701 (relating to
simple assault), 2702(a)(3), (4) and (5) (relating to aggravated
assault), 2705 (relating to recklessly endangering another
person), 2706 (relating to terroristic threats) or 2709.1 (relating
to stalking) against a family or household member although the
offense did not take place in the presence of the police officer. A
police officer may not arrest a person pursuant to this section
without first observing recent physical injury to the victim or
other corroborative evidence.
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18 Pa.C.S. § 2711.1 Herein, the officers observed markings on Ms.
VanHorn’s neck, corroborating her allegation of simple assault. Therefore,
the officers possessed statutory authority to place Appellant under arrest.
Appellant’s second claim challenges the ability of the court to impose
restitution, not the amount. This claim implicates the legality of the
sentence, which presents a question of law that we review de novo.
Commonwealth v. Zrncic, 167 A.3d 149 (Pa.Super. 2017).
The Crimes Code codifies a trial court’s ability to impose restitution for
personal injuries:
§ 1106. Restitution for injuries to person or property
(a)General rule.—Upon conviction for any crime wherein . . . the
victim suffered personal injury directly resulting from the crime,
the offender shall be sentenced to make restitution[.]
18 Pa.C.S.A. § 1106(a). Due to the “directly resulting from the crime”
language, we have held that “restitution is proper only if there is a direct
causal connection between the crime and the loss.” Commonwealth v.
Harriott, 919 A.2d 234, 238 (Pa.Super. 2007) (citing In re M.W., 725 A.2d
792 (Pa. 1999)). “[T]he courts utilize a ‘but for’ test in calculating those
damages which occurred as a direct result of the crime.” Commonwealth
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1The statute refers to 23 P.S. § 6102 for definitions, which defines “family
member” as, inter alia, “current or former sexual or intimate partners.”
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v. Oree, 911 A.2d 169, 174 (Pa.Super. 2006). The necessary causal link,
however, must pertain to one of the convicted crimes.
Zrncic, supra, highlights this principle of law, which Appellant
contends compels reversal. In Zrncic, the police suspected Zrncic was
having sex with a minor and seized the victim’s laptop to investigate
whether the device was used to contact Zrncic. The laptop apparently
contained direct evidence showing that defendant committed the crime of
unlawful contact with a minor. However, the Commonwealth withdrew that
charge as part of a plea agreement; Zrncic pleaded guilty to aggravated
indecent assault, which bore no relationship to the evidence discovered on
the laptop. The trial court awarded restitution to the victim’s mother for the
costs of replacing the seized device. We reversed, due to the fact that
Appellant was not convicted of any crime that pertained to the laptop:
In the instant case, police seized the laptop in order to
investigate whether Appellant committed the offense of Unlawful
Contact with a Minor, a charge that the Commonwealth later
dismissed. It is undisputed that the laptop did not contain any
evidence of Aggravated Indecent Assault, the crime to which
Appellant pled guilty. The question, then, is whether the trial
court may properly impose restitution for the laptop where the
loss claimed flows from crimes other than the crime to which
Appellant pled guilty.
This Court previously addressed this specific question
in [Commonwealth v. Barger, 956 A.2d 458 (Pa.Super. 2008)
(en banc)], holding that any restitution ordered must flow from
only those crimes for which a defendant is convicted, and not
any underlying, unproven, conduct. In Barger, the police
charged the appellant with Rape, Statutory Sexual Assault,
Sexual Assault, Indecent Assault, Corruption of Minors,
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Terroristic Threats, and Harassment. Barger, 956 A.2d at 459. A
jury found the appellant not guilty of all felony and misdemeanor
charges; the trial court, however, convicted the appellant of
Harassment. Barger, at 460,. The trial court sentenced the
appellant, in part, to restitution in the amount of $600.00 to
cover the cost of replacing a couch on which the victim claimed
the appellant had raped her. Id. at 460.
Upon review of the record, this Court found that Section 1106
did not authorize a sentence directing the appellant to pay
restitution for the couch because there was not a direct nexus
between the loss of the couch and the charge for which the trial
court convicted the appellant. Id. at 465.
Id. at 152.
Appellant maintains that the same logic applies herein. Specifically, he
argues that the jury acquitted him of one of the two aggravated assault
counts, which he claims necessarily establishes that the loss is not traceable
to one of the crimes for which he was actually convicted. Since Appellant
attaches significance to the jury’s acquittal, we review the elements of the
two aggravated assault crimes.
(a) Offense defined.--A person is guilty of aggravated assault
if he:
....
(2) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to any of the
officers, agents, employees or other persons
enumerated in subsection (c) or to an employee of
an agency, company or other entity engaged in
public transportation, while in the performance of
duty;
(3) attempts to cause or intentionally or knowingly
causes bodily injury to any of the officers, agents,
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employees or other persons enumerated in
subsection (c), in the performance of duty;
18 Pa.C.S. § 2702. The jury acquitted Appellant of the count charging
(a)(2), while convicting under (a)(3). Appellant maintains that this verdict
signifies that the jury convicted Appellant only of choking Chief Ward, not
the kick that caused the ankle fracture. “Specifically, though Defendant was
convicted of the F-2 aggravated assault (the alleged choking), the F-1
aggravated assault charge was rejected by the jury. Consequently, there
was no connection between the simple assault on Chief Ward and the injury
he sustained.” Appellant’s brief at 13.
We disagree. Preliminarily, we note that this Court cannot divine why
the jury convicted of one count and acquitted of the other, in that the
criminal information did not specifically mention either the injuries to the
ankle or the choking. Moreover, even if the Commonwealth had explicitly
stated as such, the jury’s verdict does not establish, for purposes of this
restitution analysis, that Appellant’s crimes were not the proximate cause of
Chief Ward’s injuries, especially insofar as criminal convictions require proof
beyond a reasonable doubt.
In any event, we find that the trial court could properly impose
restitution as a result of Appellant’s conviction for resisting arrest. We have
no doubt that, but for Appellant’s initial act of resisting arrest, the injuries to
Chief Ward would not have occurred. In this respect, we note that the
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statutes delineating the justifiable use of force explicitly state that the use of
force is not permitted to resist arrest.
(a) Use of force justifiable for protection of the person.--
The use of force upon or toward another person is justifiable
when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.—
(1) The use of force is not justifiable under this
section:
(i) to resist an arrest which the actor
knows is being made by a peace
officer, although the arrest is
unlawful; or
....
18 Pa.C.S. § 505 (emphasis added). Accordingly, Appellant was not entitled
to resist the arrest. As our Supreme Court stated in Commonwealth v.
Biagini, 655 A.2d 492 (Pa. 1995): “We cannot state it any more clearly:
there does not exist in Pennsylvania a right to resist arrest, under
any circumstances. The lawfulness of the arrest must be decided after the
fact and appropriate sanctions imposed in a later judicial setting.” Id. at
499 (emphasis added).
Thus, but for Appellant’s unlawful act, the injuries would not have
occurred. Hence, we find that the restitution was properly awarded as a
direct consequence of Appellant’s resisting arrest conviction.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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