Com. v. Lovelace, T. ( 2020 )

J-S49024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TEKEESHA LARAE LOVELACE
Appellant No. 543 EDA 2019
Appeal from the Order November 30, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0001288-2018
BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED APRIL 06, 2020
Appellant, Tekeesha Larae Lovelace, appeals from her judgment of
sentence of 11½—23 months’ imprisonment for aggravated assault and a
concurrent sentence of 2—23 months’ imprisonment for resisting arrest.1
Appellant argues, inter alia, that the evidence was insufficient to sustain her
convictions because the jury acquitted her of the underlying charge of driving
under the influence of a controlled substance. We affirm.
On February 26, 2017, Appellant was arrested during a traffic stop and
charged with the foregoing offenses. Counsel for Appellant conceded during
a pretrial hearing that the police officer had valid grounds to stop her vehicle
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(3) and 5104, respectively. Appellant was also
convicted of driving under suspension, 75 Pa.C.S.A. § 1543, but none of her
arguments on appeal involve this conviction.
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because its headlights were out. The case proceeded to trial, and the jury
found Appellant guilty of aggravated assault and resisting arrest but not guilty
of driving under the influence (“DUI”). On November 30, 2018, the trial court
imposed sentence. Appellant did not file post-sentence motions, but she filed
a timely appeal pro se.
On February 26, 2019, this Court remanded the case to the trial court
to conduct a hearing concerning whether Appellant knowingly, intelligently
and voluntarily waived her right to appellate counsel. On October 17, 2019,
Appellant informed the trial court that she desired counsel, and the court
appointed counsel to represent her on direct appeal. On December 11, 2019,
this Court ordered the trial court to direct Appellant to file a supplemental
Pa.R.A.P. 1925(b) concise statement. Appellant timely filed a supplemental
Rule 1925 statement, and the trial court subsequently filed a Pa.R.A.P.
opinion.
Appellant raises the following issues in this appeal, which we re-order
for the sake of convenience:
1. Whether there was sufficient evidence to support the jury's
verdict for guilty on Aggravated Assault (18 Pa.C.S.A. §
2702(a)(3)) and Resisting Arrest insofar that the jury found the
Appellant not guilty of Driving Under the Influence, the purported
charge for which the Appellant was placed under arrest out of
which the Aggravated Assault and Resisting Arrest charges stem.
2. Whether the jury's verdict was against the weight of the
evidence insofar as it found Appellant not guilty of Driving Under
the Influence (75 Pa.C.S.A. § 3802(d)(2)), which was the
purported underlying charge for arrest out of which the Resisting
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Arrest (18 Pa.C.S.A. § 5104) and Aggravated Assault (18
Pa.C.S.A. § 2702(a)(3)) charges stem.
3. Whether the trial court abused its discretion in sentencing the
Appellant to a period of incarceration to a period of 11½ to 23
months on the Aggravated Assault charge, 2 to 23 months on the
Resisting Arrest charge (concurrent to Aggravated Assault), based
on the fact Appellant was found not guilty of the Driving Under
Influence charge, the underlying charge of which was the cause
for the arrest that led to the Aggravated Assault and Resisting
Arrest charges being filed.
Appellant’s Brief at 5-6.
We first address Appellant’s challenge to the sufficiency of the evidence
underlying her convictions for aggravated assault and resisting arrest. When
reviewing the sufficiency of the evidence, we must determine whether the
evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he
facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d
521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to
determine the weight to accord to each witness’s testimony and to believe all,
part or none of the evidence. Commonwealth v. Tejada, 107 A.3d 788,
792–93 (Pa. Super. 2015). The Commonwealth may sustain its burden of
proving every element of the crime by means of wholly circumstantial
evidence. Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super.
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2018). As an appellate court, we may not re-weigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).
The trial court accurately summarized the evidence against Appellant as
follows:
The testimony of Officer Ryan Corcoran and Corporal Kenneth R.
Michels, Jr., as well as the video recording from Officer Corcoran’s
police vehicle and the body camera video from Officer Corcoran
and Corporal Michels establish [the following]. At approximately
2:45 a.m. on February 26, 2017, Officer Corcoran was on patrol
duty as an officer of the Coatesville Police Department when he
observed a midsize sedan traveling east in the 1000 block of East
Lincoln Highway in Coatesville, Chester County, with no
headlights. Officer Corcoran pulled the vehicle over, approached
the vehicle and asked the driver for her license. The driver of the
vehicle, identified by Officer Corcoran as [Appellant], stated she
did not have a license.
Officer Corcoran then returned to his police vehicle to remove his
jacket in order to expose his body camera. Upon returning to
[Appellant]’s vehicle, Officer Corcoran again attempted to obtain
identification from [Appellant]. [Appellant] refused to answer and
Officer Corcoran observed that [Appellant] had a distinct slur in
her speech, her reaction time was slow and she had a “1000 yard
stare.” Officer Corcoran believed [Appellant] was under the
influence of alcohol or drugs and wanted [Appellant] to exit the
vehicle in order to make further observations and insure that
[Appellant] did not attempt to drive away.
Despite giving [Appellant] many opportunities. [Appellant] did not
voluntary exit her vehicle. Therefore, Officer Corcoran and
Corporal Michels, who had arrived as back-up, were forced to
physically remove [Appellant] from her vehicle. When Officer
Corcoran took [Appellant]’s arm in order to remove her from the
vehicle, [Appellant] propped her foot into the door jamb in order
to wedge herself into the vehicle. [Appellant] heavily resisted the
officers’ attempts to remove her from the vehicle, yelling
profusely, fighting and kicking the officers. It took the officers
approximately 2 minutes to remove [Appellant] from her vehicle.
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Officer Corcoran removed [Appellant] from her vehicle and placed
her in handcuffs for the safety of the officers as well as [Appellant]
herself.
While Officer Corcoran was removing [Appellant] from her vehicle,
[Appellant] became limp and refused to walk to the police vehicle.
[Appellant] kicked Officer Corcoran in the shin repeatedly.
[Appellant] also kicked Officer Corcoran’s hand into the cage in
the police vehicle, causing his knuckles to swell. Although Officer
Corcoran testified that his hand hurt, he did not seek medical
attention and his hand was not broken. Officer Corcoran can be
heard asking [Appellant] to stop kicking him and saying “ow”
when [Appellant] kicked his hand, although [Appellant] is not seen
kicking Officer Corcoran on the body camera video.
Corporal Michels testified that he observed [Appellant] fail to
provide the requested documents to Officer Corcoran and failed to
voluntarily exit her vehicle when asked several times to do so.
Corporal Michels testified that [Appellant] was actively resisting
being removed from her vehicle, grabbing the steering wheel with
her right hand and placing her right leg between the door jamb.
Corporal Michels testified that [Appellant] kicked both he and
Officer Corcoran while they attempted to remove her from her
vehicle.
Trial Court Opinion, 1/10/20, at 5-7.
The crime of aggravated assault under 18 Pa.C.S.A. § 2702(a)(3)
requires proof that Appellant “attempt[ed] to cause or intentionally or
knowingly caused bodily injury to [an officer] . . . in the performance of duty.”
Id.; Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013).
Bodily injury is “[i]mpairment of physical condition or substantial pain.” 18
Pa.C.S.A. § 2301. The Commonwealth “has no obligation to establish that the
officer actually suffered a bodily injury; rather, [it] must establish only an
attempt to inflict bodily injury, and this intent may be shown by circumstances
which reasonably suggest that a defendant intended to cause injury.”
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Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011).
Furthermore,
[f]or the narrow purposes of determining whether a person has
committed aggravated assault, if the police effectuate an arrest
and the arrestee physically resists the officer, and subsequently
the arrest is deemed to be without probable cause, nevertheless,
the arrestee is guilty of aggravated assault because the officer
was within the “performance of duty” when effectuating the
arrest. In 1986 the legislature amended [Section] 2702(a)(3) and
substituted the words “making or attempting to make a lawful
arrest” with the phrase “in the performance of duty.” This change
broadened the scope of the statute, evidencing an intent to
protect officers when effectuating all arrests, even those which are
subsequently determined to have lacked probable cause at their
inception.
Commonwealth v. Biagini, 655 A.2d 492, 498 (Pa. Super. 1993).
The evidence is sufficient to sustain Appellant’s conviction for
aggravated assault. The entire incident, beginning with the traffic stop and
culminating in Appellant’s arrest, took place in the performance of Officer
Corcoran’s and Officer Michel’s duties as traffic officers in the City of
Coatesville. As the officers performed their duties, Appellant attempted to
cause them bodily injury by kicking them repeatedly in the shins and kicking
Officer Corcoran’s hand as they removed her from her car. Although the
officers did not suffer leg injury, and Officer Corcoran merely suffered swollen
knuckles, the jury could reasonably conclude that Appellant intended to cause
them bodily injury.
We disagree with Appellant that Commonwealth v. Wertelet, 696
A.2d 206 (Pa. Super. 1997), requires reversal of her aggravated assault
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conviction. The defendant in Wertelet kicked the arresting officer in the shin
twice during a dispute on her property. We held that this “relatively harmless
physical contact” did not amount to serious bodily injury, id. at 212, but we
did not squarely address whether the defendant attempted to cause bodily
injury to the officer. Several years after Wertelet, however, we reasoned
that kicking could indeed constitute aggravated assault under Section
2702(a)(3), stating in relevant part, “[A]lthough the officer did not testify to
any pain she experienced as a result of appellant’s kick, such conduct clearly
constitutes an attempt to inflict bodily injury.” Commonwealth v. Petaccio,
764 A.2d 582 (Pa. Super. 2000), overruled on other grounds,
Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002).2 The same point
holds true here. Appellant did not injure the officers, but she attempted to do
so. Her attempt justifies her conviction.
Appellant also claims that her acquittal on the charge of DUI requires
reversal of her aggravated assault conviction. We disagree. Our Supreme
Court held in Commonwealth v. Biagini, 652 A.2d 492 (Pa. 1995), that
physical resistance to police officers is prohibited by statute, even when an
underlying arrest is unlawful. Id. at 497. Under Biagini, Appellant’s acquittal
____________________________________________
2Mouzon overruled Petaccio’s resolution of a discretionary sentencing issue
not relevant here.
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on the underlying charge of DUI did not excuse her violent conduct towards
the police officers.3 Id.
Turning to Appellant’s conviction for resisting arrest, the Commonwealth
must prove that “with the intent of preventing a public servant from effecting
a lawful arrest or discharging any other duty,” the defendant “create[d] a
substantial risk of bodily injury to the public servant or anyone else, or
employ[ed] means justifying or requiring substantial force to overcome the
resistance.” 18 Pa.C.S.A. § 5104 (emphasis added). We emphasize “or” to
underscore that the conditions in this statute are disjunctive.
The legislature modeled Section 5104 after Section 242.2 of the Model
Penal Code. Interest of Barry W., 621 A.2d 669, 674 (Pa. Super. 1993).
Section 242.2 “covers physical interference in a host of circumstances in which
public servants discharge legal duties other than arrest. These include, for
example, a policeman executing a search warrant, a fireman putting out a
blaze, a forest or agricultural official making required inspections, an election
official monitoring balloting, and the like.” Id.
The evidence satisfies Section 5104’s element of “discharging any other
duty.” The trial court wrote that when Officer Corcoran stopped Appellant’s
car for the Motor Vehicle Code violation, in order to protect himself, he had
____________________________________________
3 Although the validity of Appellant’s conviction did not rise or fall on the
officers’ conduct, it deserves mention that their conduct towards her was
entirely proper.
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the authority to order her to exit the car without additional probable cause or
reasonable suspicion. In our view, Officer Corcoran had a better reason4 for
ordering Appellant out of the car: he was “discharging [his] duty” to test
whether Appellant was under the influence of alcohol or a controlled
substance. 18 Pa.C.S.A. § 5104.
Field sobriety testing is proper when the officer has reasonable suspicion
that the driver is under the influence of alcohol or a controlled substance.
Commonwealth v. Cauley, 10 A.3d 321, 327 (Pa. Super. 2010) (police
officer had reasonable suspicion to detain defendant and conduct field sobriety
tests, even though officer did not witness any motor vehicle violations or
observe anything remarkable about the way defendant operated his vehicle,
where, after parking his vehicle, defendant approached officer and asked why
officer was at that particular location, officer smelled a strong odor of alcohol
on defendant’s breath and observed that his eyes were bloodshot). We think
it self-evident that field sobriety testing falls within the scope of Section 5104’s
“other duties” element as one of the many “circumstances in which public
servants discharge legal duties other than arrest.” Barry W., 621 A.2d at
674.
Officer Corcoran stopped Appellant because she was driving without
using her headlights at approximately 2:45 in the morning. He asked if she
____________________________________________
4See Wilson v. Plumstead Tp. Zoning Hearing Board, 936 A.2d 1061,
1065 n.3 (Pa. 2007) (appellate court may affirm “on any ground”).
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had identification, and she replied that she did not have a license. He asked
again, and Appellant refused to answer. Appellant slurred her speech and had
slow reaction time as well as a thousand yard stare. This evidence gave Officer
Corcoran reasonable suspicion to direct Appellant to leave the car for field
sobriety testing. Cauley, 10 A.3d at 327.
The evidence further demonstrates that Appellant intended to obstruct
the officers’ performance of duties by “employ[ing] means justifying or
requiring substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.
Instead of exiting the car at Officer Corcoran’s direction, Appellant refused to
move, requiring Officer Corcoran and Officer Michels to use physical force to
extricate her from the vehicle. She violently resisted the officers by grabbing
the steering wheel with her right hand, placing her right leg between the door
jamb to wedge herself in, and kicking the officers repeatedly as they pulled
her out of the car. Her acts “justif[ied] and require[ed] substantial force to
overcome [her] resistance.” Id.; Commonwealth v. Coleman, 19 A.3d
1111, 1118 (Pa. Super. 2011) (evidence sufficient to support conviction for
resisting arrest; robbery suspect, who had been lawfully seized, struggled with
officer, when officer attempted to remove his hand from his pocket, and struck
officer with his shoulders, while cursing and telling the officer to get off of
him); Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)
(defendant’s use of passive resistance requiring substantial force to overcome
provided sufficient evidence for upholding her conviction for resisting arrest;
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officer testified that she struggled to pull defendant apart from her husband
with whom defendant had interlocked her arms and legs, and although officer
verbally commanded defendant several times to put her hands behind her
husband’s back, she refused to obey and held her arms tightly beneath him,
and officer testified that her attempts to restrain couple to place them under
arrest left her exhausted); Commonwealth v. Clark, 761 A.2d 190, 193–94
(Pa. Super. 2000) (evidence sufficient where appellant “took a fighting
stance,” forced police to chase him, and engaged in struggle during which
officer had to roll him onto ground to arrest him).
The fact that the jury acquitted Appellant of DUI does not warrant
reversal of her conviction for resisting arrest. Section 5104 does not require
the Commonwealth to obtain a conviction on an underlying charge; it simply
requires proof that the officer was “effecting a lawful arrest” or “discharging
any other duty.” Id. For this reason, and for the other reasons provided
above, the evidence was sufficient to sustain Appellant’s conviction for
resisting arrest.
Next, Appellant argues that her convictions are against the weight of
the evidence. We agree with the trial court that Appellant waived this issue.
Under Pa.R.Crim.P. 607, the defendant must object to the weight of the
evidence via written motion before sentencing, during the sentencing hearing
or in a post-sentence motion. “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
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evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004).
Appellant failed to file a written objection to the weight of the evidence prior
to sentencing. She also failed to raise an objection to the weight of the
evidence during sentencing or via post-sentence motions. Accordingly, she
waived this objection.
Finally, Appellant argues that the trial court abused its discretion by
sentencing her to 11½—23 months’ imprisonment for aggravated assault and
a concurrent sentence of 2—23 months on resisting arrest, since the jury
acquitted her of the underlying charge of DUI. The trial court correctly
determined that (1) Appellant waived this issue by failing to raise it during
sentencing or in post-sentence motions, and (2) even if she preserved this
issue, the court properly considered all relevant factors under 42 Pa.C.S.A. §
9721(a), including the protection of the public, gravity of the offense and
Appellant’s rehabilitative needs. Trial Court Opinion, 1/10/20, at 9-12.
Therefore, we adopt the trial court’s opinion as our own on this issue. In any
future filings with this or any other court addressing this ruling, the filing party
shall attach a copy of the trial court opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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Circulated 03/27/2020 03:21 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: CHESTER COUNTY, PENNSYLVANIA
VS.
CRIMINAL ACTION
TAKEESHA LOVELACE : NO. CP-15-CR-0001288-2018
Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, on behalf of the
Commonwealth of Pennsylvania
Thomas P. McCabe, Esquire, on behalf of Defendant
OPINION
Defendant appeals from the judgment of sentence entered in this matter on
November 30, 2018, following a trial and conviction for aggravated assault of a polNe officer
and resisting arrest or other law enforcement. We write in support of judgment in accordance
with Pa.R.A.P. 1925(a).
PROCEDURAL HISTORY
On August 28, 2018, following a jury trial, Defendant was found guilty of
aggravated assault and resisting arrest or other law enforcement, and not guilty of driving under
the influence of a controlled substance. Defendant was also found guilty of the summary
offenses of driving while operating privilege is suspended or revoked and operating a vehicle
without a head lamp system. Defendant was found not guilty of the summary offense of careless
driving,
Defendant was sentenced on November 30, 2018 to 11 '/2 to 23 months
incarceration with 5 years probation consecutive, on the charge of aggravated assault; 2 to 23
The summary offenses were disposed of by the undersigned, sitting without a jury.
months incarceration for resisting arrest, to be served concurrent with the sentence for
aggravated assault; and the mandatory minimum of 90 days incarceration for driving while
operating privilege is suspended or revoked, related to driving under the influence of alcohol, to
be served concurrent with the sentence for aggravated assault. Defendant did not file post
sentence motions. Defendant timely filed a Notice of Appeal on December 28, 2018.
On or about February 26, 2019, the Court filed an Opinion with the Superior
Court, in accordance with Pa.R.A.P. 1925(a). In a Memorandum decision filed October 11,
2019, the Superior Court remanded the matter to the trial court to conduct a hearing concerning
whether Defendant knowingly, intelligently and voluntarily waived her right to appellate
counsel. By Order dated October 17, 2019, following an on -the -record colloquy wherein
Defendant informed the Court, under oath, that she did not want to waive her right to counsel on
direct appeal, Thomas P. McCabe, Esquire was appointed to represent Defendant on direct
appeal.
On December 11, 2019, the Superior Court ordered the Court to order the filing of
a supplemental Pa.R.A.P. 1925(b) concise statement from Defendant. Defendant timely filed her
supplemental Concise Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b) on January 2, 2020. We write in support of judgment in accordance with Pa.R.A.P.
1925(a).
DISCUSSION
In her Concise Statement of Errors Complained of on Appeal filed
January 2, 2020, Defendant essentially complains that the jury's verdict was against the weight
of the evidence; there was insufficient evidence to support the jury's verdict; and the Court
abused its discretion in sentencing Defendant.
2
Defendant has failed to properly preserve her first error alleging that the verdict
was against the weight of the evidence. Pursuant to Pa.R.Crim.P. 607,
(A)A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for new trial:
(I) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post -sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). "[A] challenge to the weight of the evidence must be raised with
the trial judge or it will be waived." Comment, Pa.R.Crim.P. 607. Where the trial court
addresses a weight of the evidence claim in its opinion pursuant to Pa.R.A.P. 1925(a), if the issue
was not raised in a post -sentence motion, it is waived. See, Commonwealth v. Thompson, 93
A.3d 478 (Pa.Super. 2014) (claim addressing weight of the evidence waived where it was raised
for the tirst time in Pa.R.A.P. 1925(b) statement, even though trial court addressed issue in its
opinion). Defendant did not file post -sentence motions and first raised this claim in her
Statement of Errors Complained of on Appeal. Therefore, Defendant has waived this claim on
appeal.
In her second allegation of error, Defendant alleges that the evidence was
insufficient to allow the jury to find her guilty of aggravated assault of a police officer and
resisting arrest, when Defendant was acquitted of driving under the influence, out of which the
aggravated assault and resisting arrest charges stem. In reviewing a sufficiency of evidence
claim, the Court views the evidence in the light most favorable to the Commonwealth as the
verdict winner to determine whether there is sufficient evidence to enable the jury to find every
element of the crime beyond a reasonable doubt. Commonwealth v. Vargas, 108 A.3d 858, 867-
68 (Pa.Super. 2014) (citations omitted). The facts and circumstances established by the
3
Commonwealth need not preclude every possibility of innocence. Id. The credibility of the
witnesses and the weight of the evidence are for the jury to determine. Id.
In order to prove aggravated assault, the Commonwealth must prove that the
defendant "attempt[ed] to cause or intentionally or knowingly caused bodily injury to [an]
officer[ ]...in the performance of duty. 18 Pa.C.S. § 2702(a)(3)." Commonwealth v. Rahman, 75
A.3d 497, 501 (Pa.Super. 2013). Bodily injury is defined as "[i]mpairment of physical condition
or substantial pain." 18 Pa.C.S.A. § 2301.
[l]n a prosecution for aggravated assault on a police officer[,] the
Commonwealth has no obligation to establish that the officer
actually suffered a bodily injury; rather, the Commonwealth must
establish only an attempt to inflict bodily injury, and this intent
may he shown by circumstances which reasonably suggest that a
defendant intended to cause injury.
Commonwealth v. Brown, 23 A.3d 544, 560 (Pa.Super. 2011) (emphasis included), citing,
Commonwealth v. Marti, 779 A.2d 1177, 1183(Pa.Super. 2001). Intent may be shown by
circumstances suggesting that the actor intended to cause bodily injury. Commonwealth v.
Polston, 420 Pa. Super. 233, 616 A.2d 669 (1992), enc. den., 534 Pa. 638, 626 A.2d 1157
(1993). "A person acts intentionally with respect to a material element of an offense" if "it is his
conscious object to engage in conduct of that nature or to cause such a resul[t]." 18 Pa.C.S.
§ 302(b)( I )(i).
Resisting arrest or other law enforcement 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.
4
18 Pa.C.S.A. § 5104. "[T]he provision of 18 Pa.C.S.A. § 5104 are clearly disjunctive."
Commonwealth v. Karl, 476 A.2d 908, 911 (Pa.Super. 1984). In order to be convicted under the
first part of Section 5104, there must be a lawful arrest. Id. However, a defendant can be
convicted under the second part of Section 5104 by preventing a public servant from
"discharging any other duty". Id. Section 5104 was modeled after Section 242.2 of the Model
Penal Code. In Interest of Barry W., 423 Pa. Super. 549, 557-558, 621 A.2d 669, 674 (1993).
`Section 242.2 covers physical interference in a host of
circumstances in which public servants discharge legal duties
other than arrest. These include, for example, a policeman
executing a search warrant, a fireman putting out a blaze, a forest
or agricultural official making required inspections, an election
official monitoring balloting, and the like'
In Interest of Barry W., at 558, 621 A.2d at 674 (emphasis included) (citations omitted).
Resisting arrest does not require serious bodily injury or actual injury to the arresting officer.
Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super. 1989). Sufficient evidence of resisting arrest
may exist where "the arrestee's actions created a substantial risk of bodily injury to the arresting
fficer." Id.
The testimony of Officer Ryan Corcoran and Corporal Kenneth R. Michels, Jr.,
as well as the video recording from Officer Corcoran's police vehicle and the body camera video
from Officer Corcoran and Corporal Michels establish both of these crimes beyond a reasonable
doubt. At approximately 2:45 a.m. on February 26, 2017, Officer Corcoran was on patrol duty
as an officer of the Coatesville Police Department when he observed a midsize sedan traveling
east in the 1000 block of East Lincoln Highway in Coatesville, Chester County, with no
headlights. (N.'1'. 8/28/2018, 6-7). Officer Corcoran pulled the vehicle over, approached the
vehicle and asked the driver for her license. (N.T. 8/28/2018, 8). The driver of the vehicle,
identified by Officer Corcoran as Defendant, stated she did not have a license. (N.T. 8/28/2018,
8).
Officer Corcoran then returned to his police vehicle to remove his jacket in order
to expose his body camera. (N.T. 8/28/2018, 29). Upon returning to Defendant's vehicle,
Officer Corcoran again attempted to obtain identification from Defendant. (N.T. 8/28/2018, (9-
10). Defendant refused to answer and Officer Corcoran observed that Defendant had a distinct
slur in her speech, her reaction time was slow and she had a "1000 yard stare". (N.T. 8/28/2018,
10). Officer Corcoran believed Defendant was under the influence of alcohol or drugs and
wanted Defendant to exit the vehicle in order to make further observations and insure that
Defendant did not attempt to drive away. (N.T. 8/28/2018, 10-11; 16).
Despite giving Defendant many opportunities, Defendant did not voluntary exit
her vehicle. Therefore, Officer Corcoran and Corporal Michels, who had arrived as back-up,
were forced to physically remove Defendant from her vehicle. (N.T. 8/28/2018, 16). When
Officer Corcoran took Defendant's arm in order to remove her from the vehicle, Defendant
propped her foot into the door jamb in order to wedge herself into the vehicle. (N.T. 8/28/2018,
17). Defendant heavily resisted the officers' attempts to remove her from the vehicle, yelling
profusely, fighting and kicking the officers. (N.T. 8/28/2018, 18; 20). It took the officers
approximately 2 minutes to remove Defendant from her vehicle. (N.T. 8/28/2018, 17). Officer
Corcoran removed Defendant from her vehicle and placed her in handcuffs for the safety of the
officers as well as Defendant herself (N.T. 8/28/2018, 18).
While Officer Corcoran was removing Defendant from her vehicle, Defendant
became limp and refused to walk to the police vehicle. (N.T. 8/28/2018, 18; 52). Defendant
kicked Officer Corcoran in the shin repeatedly. (N.T. 8/28/2018, 19). Defendant also kicked
6
Officer Corcoran's hand into the cage in the police vehicle, causing his knuckles to swell. (N.T.
8/28/2018, 19). Although Officer Corcoran testified that his hand hurt, he did not seek medical
attention and his hand was not broken. (N.T. 8/28/2018, 19; 53). Officer Corcoran can be heard
asking Defendant to stop kicking him and saying "ow" when Defendant kicked his hand,
although Defendant is not seen kicking Officer Corcoran on the body camera video. (N.T.
8/28/2018, 33-34; 72; Exhibit C-2).
Corporal Michels testified that he observed Defendant fail to provide the
requested documents to Officer Corcoran and failed to voluntarily exit her vehicle when asked
several times to do so. (N.T. 8/28/2018, 65-66). Corporal Michels testified that Defendant was
actively resisting being removed from her vehicle, grabbing the steering wheel with her right
hand and placing her right leg between the doorjamb. (N.T. 8/28/2018, 66). Corporal Michels
testified that Defendant kicked both he and Officer Corcoran while they attempted to remove her
from her vehicle. (N.T. 8/28/2018, 67).
Although Defendant was acquitted of driving under the influence, that does not
bar the jury from finding Defendant guilty of resisting arrest. One of the essential elements of
the crime charged under Section 5104 of the Crimes Code is that there must be a lawful arrest.
Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995). While Defendant filed a Motion to
Suppress alleging the stop was illegal and the arrest was unlawful, that motion was withdrawn.
(N.T. 7/30/2018, 2). Therefore, Defendant concedes that the stop and the arrest were lawful.
The evidence of record, read in the light most favorable to the Commonwealth,
establishes that Defendant acted with the "intent of preventing a public servant" from making a
lawful arrest by creating a substantial risk of bodily injury by employing "means justifying or
requiring substantial force to overcome the resistance." Officer Corcoran stopped Defendant
7
because she was driving without using her headlights at approximately 2:45 in the morning.
Officer Corcoran had the authority to ask Defendant to exit the lawfully stopped vehicle without
any additional probable cause or reasonable suspicion. See, Commonwealth v. Rodriguez, 695
A.2d 864, 868 (Pa.Super. 1997), citing, Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54
L. Ed. 2d 331 (1977) (police officer permitted to request driver of a lawfully stopped vehicle to
exit the vehicle without any additional probable cause or reasonable suspicion to protect safety of
officer). Officer Corcoran asked Defendant twice for her identification and asked her numerous
times to exit the vehicle. Defendant failed to respond. When Defendant failed to exit the
vehicle, Officer Corcoran removed her from the vehicle. Officer Corcoran required the
assistance of Corporal Michaels to remove Defendant from her vehicle and place her in his
police vehicle. Defendant reacted by continually kicking the officer until she was placed into the
police vehicle. It is irrelevant whether Officer Corcoran sustained serious bodily injury or actual
injury.
Defendant refused to exit her vehicle and resisted Officer Corcoran's attempts to
remove her from her vehicle. Defendant kicked Officer Corcoran as he attempted to remove her
from her vehicle. Defendant continued to kick Officer Corcoran as he was attempting to place
her into his police vehicle. it is irrelevant whether Officer Corcoran sustained serious bodily
injury or actual injury.
The evidence of record read in the light most favorable to the Commonwealth
sufficiently establishes aggravated assault of a police officer. Unlike the charge of resisting
arrest, the lawfulness of an arrest is irrelevant to the charge of aggravated assault of a police
officer. Biagini, at 34, 655 A.2d at 498.
[I]f the police effectuate an arrest and the arrestee physically resists
the officer, and subsequently the arrest is deemed to be without
8
probable cause, nevertheless, the arrestee is guilty of aggravated
assault because the officer was within the "performance of duty"
when effectuating the arrest.
Id. To sustain a conviction for aggravated assault of a police officer, the Commonwealth need
only establish Officer Corcoran suffered bodily injury as a result of Defendant's conduct while
he was "in the performance of duty". Officer Corcoran stopped Defendant based upon a motor
vehicle violation. When Defendant failed to produce identification requested by Officer
Corcoran, he asked Defendant to exit the vehicle. When Defendant refused to exit the vehicle,
Officer Corcoran attempted to remove her from the vehicle and was repeatedly kicked in the shin
by Defendant. Defendant also kicked Officer Corcoran's knuckles, causing them to swell.
Although Officer Corcoran's hand was not broken and he did not seek medical attention, it is not
the Commonwealth's burden to establish actual bodily injury. It is sufficient that the
Commonwealth established an attempt to cause bodily injury, through circumstances reasonably
suggesting that Defendant intended to cause injury. Brown, supra.
Defendant's third allegation of error states in pertinent pail, "the Trial Court
abused its discretion in sentencing the Appellant to a period of incarceration...of 11 'A to 23
months on the Aggravated Assault charge, 2 to 23 months on the Resisting Arrest charge...." In
the event this allegation of error involves the discretionary aspects of the sentence, this claim has
been waived. A challenge to the discretionary aspects of a sentence is not automatically
reviewable as of right. Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008).
Although Defendant's appeal was timely filed, Defendant failed to preserve any claim regarding
sentencing when the sentence was imposed or in a post -sentence motion.
that "where the issues raised assail the trial
It is well -established
court's exercise of discretion in fashioning the defendant's
sentence, the trial court must be given the opportunity to
reconsider the imposition of the sentence either through the
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defendant raising the issue at sentencing or in a post -sentence
motion." Commonwealth v. Tejada, 107 A.3d 788, 798 (Pa.Super.
2015).
Commonwealth v. Cramer, 195 A.3d 594, 610 (Pa.Super. 2018). The failure to raise errors
regarding the trial court's discretion in imposing a sentence either during sentencing or through
post -sentence motions results in a waiver of these claims on appeal. Id. (citations omitted).
In the event this allegation of error involves the legality of the sentence, we find
this allegation of error to he without merit. In determining the sentence to be imposed, "the court
shall follow the general principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs of the defendant."
42 Pa.C.S.A. § 9721(b).
The court is not required to parrot the words of the Sentencing
Code, stating every factor that must be considered under Section
9721(b). However, the record as a whole must reflect due
consideration by the court of the statutory considerations
[enunciated in that section]. Commonwealth v. Feucht, 955 A.2d
377, 383 (Pa.Super. 2008). See also, Commonwealth v. Malovich,
903 A.2d 1247, 1253 (Pa.Super. 2006).
Coulverson, at 145-46. A defendant's punishment "must account for the rehabilitative need of
the defendant and the companion interest of society reflected in section 9721(b)." Id., at 148.
Where the court imposes a sentence for a felony, the court shall disclose in open court at the time
of sentencing the reason or reasons for the sentence imposed. Id.
The court shall consider the sentencing guidelines in determining the appropriate
sentence. 42 Pa.C.S.A. § 9721(b); 204 Pa.Code § 303.1(a). The sentencing guidelines arc not
mandatory. Antidormi at 760 (citations omitted). In imposing a sentence, the court is also
required to consider the circumstances of the offense as well as the character of the defendant.
to
Antidormi, at 761. "In considering these factors, the court should refer to the defendant's prior
criminal record, age, personal characteristics and potential for rehabilitation. [Commonwealth v.
McClendon, 403 Pa. Super. 467, 589 A.2d 706, 712-13 (1991) (en bane) (quoting Common-
wealth v. Frazier, 347 Pa. Super. 64, 500 A.2d 158, 159 (1985))." Id. A sentence will not be
disturbed where the court's reasons for the sentence, placed on the record, demonstrate that the
court weighed the sentencing guidelines with the facts of the crime and the defendant's character
in a meaningful fashion. Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003).
Defendant was sentenced on November 30, 2019 to 11 1/2 to 23 months
incarceration, with 5 years probation consecutive, on Count 2, aggravated assault of a police
officer. Defendant was sentenced on Count 3, resisting arrest, to 2 to 23 months incarceration, to
be served concurrently with the sentence on Count 2. Finally, Defendant was sentenced to a
mandatory minimum sentence of 90 days incarceration for driving with a suspended license, to
be served concurrently with Count 2.
Defendant has a prior record score of 5. Defendant's lengthy criminal history
dates back to 1998 wherein she was informally adjudicated as a juvenile. (N.T. 11/29/2018, 4).
Defendant's adult record began in 1999 and includes convictions for disorderly conduct; retail
theft; underage drinking, public drunkenness; summary harassment; misdemeanor disorderly
conduct; access device fraud; driving under the influence and endangering the welfare of
children. (N.T. 11/29/2018, 4-5). Defendant has an offense gravity score of 6 on the aggravated
assault charge and 2 on the resisting arrest charge. The guidelines provide a minimum range of
21 to 27 months incarceration on the aggravated assault charge, plus or minus 6 months and 1 to
9 months incarceration on the resisting arrest charge, plus or minus 3 months. (N.T. 11/30/2018,
5-6). The Commonwealth sought a state sentence within the guideline range on the aggravated
assault charge and the resisting arrest charge, as well as the mandatory minimum sentence for
driving with a suspended license. (N.T. 11/29/2018, 8-9).
The reasons for the sentence were fully set forth by the Court on November 30,
2018 in open court at the sentencing. The Court fully considered the factors set forth in 42
Pa.C.SA. § 9721(b), including protection of the public, gravity of the offense, and rehabilitative
needs of the defendant. (N.T. 11/30/2018, 37-43). We hereby incorporate the transcript of the
November 30, 2018 sentencing as the Opinion of the Court for the purposes of the appeal on this
issue.
For the foregoing reasons, we respectfully submit that Defendant's allegations are
without merit and the appeal should be denied.
13Y THE COURT:
J.
Date: 1 10
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