Com. v. Kortman, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT W. KORTMAN
Appellant No. 40 MDA 2014
Appeal from the Judgment of Sentence December 5, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001970-2013
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:
FILED MAY 14, 2015
While I agree with the Majority that Kortman’s conviction on the
charges of harassment and disorderly conduct must be reversed, I believe
that viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, Kortman’s convictions of the charges of recklessly
endangering another person and resisting arrest should be affirmed.
Accordingly, I am compelled to concur in part and dissent in part to the
Majority Memorandum.
The following evidence was produced at trial.
On April 19, 2012, at approximately 6:30 p.m., Kortman was parked in
the West Reading Borough parking lot. Kortman was there pursuant to court
order – the parking lot was the place ordered by another judge in Berks
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County as the location where Kortman and his ex-girlfriend would exchange
physical custody of their child. Kortman had either arrived early or his ex-
girlfriend was late, as, by 6:30, he had been waiting in the parking lot for 30
– 45 minutes.
West Reading Police Sergeant Keith Phillips had finished his shift and
was leaving for the day when he went into the parking lot. N.T. Trial,
11/19-20/2013, at 58.1 He had noticed Kortman waiting in the parking lot
and went over to Kortman’s car to see why he was there. Id. at 58-60.
Sergeant Phillips was not in uniform, but was wearing a polo shirt that had a
badge embroidered on it and which had the words “West Reading Police
Department” embroidered on the left sleeve. Id. at 59. Sergeant Phillips
identified himself as a police officer and asked Kortman to identify himself
and to tell him why he had been in the parking lot. 2 Id. at 61. Kortman
declined to answer Sergeant Phillips’ questions. Id. In his testimony,
Sergeant Phillips acknowledged that Kortman was under no obligation to
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1
The notes of testimony are contained in one volume, although the trial
took place over two days, November 19 and 20, 2013. Any citation to
testimony on or after page 127 was from November 20, 2013.
2
Although Sergeant Phillips testified he thought Kortman’s activity was
suspicious, he never claimed to have had a reasonable suspicion of criminal
activity.
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respond, but the Sergeant called for uniformed police backup in order to
compel response.3 Id. at 61-62.
While Sergeant Phillips confronted Kortman, Kortman called 9-1-1 to
report that a person claiming to be a police officer, but who would not
produce a badge, was harassing him. See Transcript of 9-1-1 call. The
9-1-1 operator told Kortman to obtain the person’s license plate number.
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3
From the direct examination of Sergeant Phillips:
Q: [A]t that point did Mr. Kortman believe you were a
police officer?
A: No, I don’t believe so.
Q: So what happened?
A: He refused to talk to me.
Q: What did you do?
A: I said, okay, I’ll get some people that you will talk to
then. And I went back to my car, and I called for the guys
who were on duty to come over and just find out who he
was.
Q: Why did you call for officers who were on duty to figure
out who the individual was?
A: Well, they’re gonna show up in a marked police car and
uniform. So sometimes I guess that makes a difference to
some people. So I wanted to make sure that that
happened.
N.T. Trial, 11/19/2013 at 62-63.
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Id. Kortman attempted to take a cell phone picture of Sergeant Phillips’
pickup truck, but Sergeant Phillips backed up toward Kortman and then left
the scene. N.T. Trial, 11/20/2013, at 157.
Almost immediately thereafter, Police Officer Marc Oxenford, in full
uniform and driving a marked police car, arrived at the parking lot. Id. at
131. No one other than Kortman was there. Id. at 129. Officer Oxenford
testified he was responding to a report of a fight in progress.4 Id. Officer
Oxenford attempted to talk with Kortman to find out why he had called 9-1-
1, however, Kortman did not respond because he was still on the phone with
9-1-1. Id. at 130. Officer Oxenford’s marked vehicle was parked
approximately four to five feet in front of Kortman’s BMW. Id. at 63, 119.
Sergeant Phillips returned to the scene. It is unclear precisely where
he parked, but Kortman testified he might have been able to get around the
cars. Id. at 161. Police Officer Edward DeLozier, Jr., also in full uniform
and driving a marked vehicle, arrived in response to Sergeant Phillips’
request for backup. Id. at 103-104. When Officer DeLozier arrived, he saw
what appeared to be a public argument between Kortman and the other two
officers. Id. at 102. A physical confrontation ensued in which the police
officers attempted to get Kortman out of his car and question him. See id.,
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4
It is unclear who claimed there was a fight in progress. The 9-1-1
transcript of Kortman’s call contains no claim of a fight and there are no
indications of any other calls to the police.
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generally. At some point during the argument, Kortman started his car. As
the officers attempted to reach into Kortman’s car to turn it off, Kortman
attempted to put the car into gear. Id. at 107. The car lurched forward
approximately three feet, and then stalled.5 Id. at 107, 122-23. The
movement of the car forced the officers to jump back out of the way to avoid
being hit or having their feet run over. Id. at 106-107. Officer Oxenford
testified that had Kortman been able to get the car fully engaged, “we would
have got run over.” Id. at 147.
Specifically, Officer DeLozier testified as follows:
A: What happened is I told him to get out of the car. He
stepped back in the car. He motioned – I don’t know if it’s a key
or push start, but I saw him go towards the steering wheel. I
heard the engine start. That was after I told him to get out of
the car. I told him to get out of the car again as I stepped in to
try to turn off the key to the engine. As I stepped in with my
right foot, the car went forward. I jumped back. Officer
Oxenford was right behind me, if you will, to my right. And as
the car went forward, I jumped back. At that point, I told him
he was under arrest, get out of the car.
Q: And where is your body positioned at the precise moment Mr.
Kortman’s car goes forward?
A: I am stepping into his car. So my right foot is just inside of
his car, and I’m moving towards the area where I think that the
keys would be.
Q: Where is your right hand?
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5
Kortman’s car had a manual transmission.
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A: It’s in front of the steering wheel or moving towards that
direction. I don’t know how far my hand was. I know I didn’t
make contact with the keys.
Q: Where is your left hand?
A: To the best of my knowledge, it would be on the – it would be
[on] the front quarter panel of the driver’s door. So the driver’s
door is open, and I’m stepping in. I’m left-handed, but I
stepped in with my right foot and braced myself with my left arm
and tried to reach in with the right arm to grab the keys.
Q: And where is your head at this that point? Is it inside or
outside the car?
A: It’s partially both, I would say. It’s hard to know the exact
location. I know I stepped in. And once it moved, I jumped
back. I jumped back right away.
Q: How would you best describe the movement of that car?
A: Abrupt, fast, and it scared me. As I stepped in and moved,
the car went about 3 feet forward. And I jumped back out of
maybe some reaction, but I can also say fear a little bit when
that happened.
Q: Why were you afraid?
A: Because he refused to come out. And then when I told him to
come out and he starts the car and I tell him to come out again
and he refused to do so and I reach in to stop the – to turn the
keys off and the car lurches forward, at that point I don’t know
what Mr. Kortman’s capable of because he’s not listening to any
of my commands and now the car’s moving forward.
N.T. Trial, 11/19/2013, at 105-107.
At this point, the officers told Kortman he was under arrest. Id. at
108. Officer DeLozier reached into the car to pull Kortman out, but Kortman
pulled back and broke free of his grip. Id. Kortman reached back to the
steering column as if to try to start the car again. Id. at 109. Both officers
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reached in again, this time pulling Kortman largely out of the car. Kortman
put his foot on the ground and braced himself against the officer, who then
pulled Kortman to the ground and handcuffed him. Id. at 109-110.
Other than admitting that he might have been able to move his car
around the police vehicles and leave the scene, Kortman denied all other
aspects of the Commonwealth’s case. He claimed he fully complied with
Sergeant Phillips’ request to identify himself, giving the Sergeant his driver’s
license, registration and insurance card.6 Id. at 163. He stated the car
never even lurched because he never turned the car on. Id. at 164. He did
not describe the amount of force needed to remove him from his car, but
claimed the officers used excessive force in subduing him. Id. at 166.
Regarding reckless endangerment, based upon the above evidence,
the majority concludes “…the car lurched forward by stalling out. This
occurs in a manual transmission vehicle when the vehicle is in gear and a
person removes his or her foot from the clutch too quickly without pressing
the gas pedal adequately. Hence, the evidence establishes that the car
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6
This testimony is contradicted by the 9-1-1 call placed by Kortman in which
he was adamant he had no idea who the person was who was accosting him.
Kortman did not explain why he would produce his driver’s license,
registration and insurance card to a stranger. Neither did he explain why,
having produced his identification, he would then call 9-1-1, reporting he
was being accosted by someone claiming to be a police officer.
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lurched forward and stalled because Appellant’s car was on and in gear and
his foot was no longer on the clutch.” Majority at 8.
The jury clearly rejected Kortman’s testimony that the car never
moved because he never turned on the car. Accepting that Kortman started
his car and put it into gear, the Commonwealth was entitled to the
reasonable inference he meant to drive it. This inference is supportable by
the fact his car moved forward. However, having accepted the jury’s initial
determination, and acknowledging that the Commonwealth is entitled to all
reasonable inferences drawn from the facts,7 the majority improperly rejects
that reasonable inference by unilaterally determining that Kortman did not
attempt to drive his car. Rather, the majority asserts the explanation for
the car moving is that Kortman removed his foot from the clutch, while the
car was in gear, allowing the car to stall and lurch forward. This
interpretation of the evidence represents improper fact-finding by the
majority and is not warranted given our standard of review. See
Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)
(Appellate court may not weight the evidence and substitute its judgment for
the fact-finder’s.)
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7
Majority at 8, citing Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.
Super. 2013).
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The majority determines it was a virtual impossibility for any of the
police to be at risk for serious bodily injury because Kortman never
attempted to drive his car. Majority at 8-9. The jury was entitled to believe
the police officers’ testimony and give it whatever weight might be
appropriate. By convicting Kortman of REAP, the possibility of serious bodily
injury became, essentially, a finding of fact. Considering the testimony and
the reasonable inferences drawn therefrom, it cannot be said as a matter of
law, the officers were not at risk of suffering serious bodily injury. By
disregarding the jury’s determination, the majority has substituted its
judgment for the fact-finders’ and has again engaged in improper fact-
finding. See Thompson, supra; Commonwealth v. Grant, 813 A.2d 726,
734 (Pa. 2002) (Appellate courts do not act as fact-finders, since to do so
would require an assessment of credibility of the testimony, and that is
clearly not the appellate court’s finction.)
Having properly determined Kortman put his car in gear and
attempted to drive away while Office DeLozier was reaching inside, the jury
was allowed to conclude those actions were evidence of Kortman’s
recklessness. Accordingly, I find that viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, as we are required to do,
provides sufficient evidence to support Kortman’s conviction of REAP.8
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8
The majority also comments on the likelihood that the encounter between
the police officers and Kortman constituted an unlawful investigative
(Footnote Continued Next Page)
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I also find Kortman’s conviction of resisting arrest9 to be supported by
the evidence. Kortman specifically claims there was insufficient evidence to
show the police were required to use substantial force to overcome his
resistance. I note that the statute does not criminalize all resistance to
arrest, rather, only such resistance that requires substantial force to
overcome.10 “Substantial”, however, is not defined by statute. Accordingly,
looking to the common understanding of the word,11 substantial is defined as
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(Footnote Continued)
detention. Majority at 10, n.2. I note that at the beginning of the
encounter, it is undisputed that Kortman called 9-1-1 and requested police
assistance. Whether the encounter was unlawful was never determined
because no motion to suppress was filed and the issue was never raised,
argued or briefed. We have no knowledge why this issue was unexplored.
While Kortman might be entitled to relief on such grounds, that would only
be appropriate after the issue had been thoroughly reviewed through a Post-
Conviction Relief Act petition.
9
Resisting arrest is defined as:
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.
18 Pa.C.S. § 5104.
10
In general, a “minor scuffle” is insufficient to support a charge of resisting
arrest. Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa. Super.
1981).
11
See 1 Pa.C.S. § 1903 (a), which states, in relevant part: “Words and
phrases shall be construed according to rules of grammar and according to
their common and approved usage.”
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ample or considerable. See Random House Kernerman Webster’s College
Dictionary, 2010; American Heritage Dictionary of the English Language, 5th
Edition, 2010.
Here, the evidence demonstrated that it took the efforts of two police
officers to pry Kortman from his car, take him to the ground, and handcuff
him. The trial court cites Officer DeLozier’s testimony on pages 108-110 to
support the jury’s determination. In addition to the information cited by the
trial court, Officer DeLozier also testified that Kortman attempted to restart
his car during this struggle, thereby adding additional danger to the
situation. It must also be remembered that the police officers were
attempting to remove Kortman from the close confines of the front seat of
an automobile. The testimony described multiple efforts of two police
officers, ultimately requiring Officer DeLozier to grab Kortman by the back of
his neck, forcefully pulling him from the car, and then requiring two officers
to force Kortman to the ground.
There is no case law describing the efforts to arrest and control an
unwilling defendant in close quarters. However, the force required to
overcome passive resistance can be considered substantial. This Court’s
decision in Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super.
2007), is instructive.
The only evidence cited in Thompson to support the use of
substantial force was the following:
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Officer Ewing testified that she struggled to pull Appellant apart
from her husband with whom she had interlocked her arms and
legs. Although Officer Canfield verbally commanded Appellant
several times to put her hands behind his back, she refused to
obey and held her arms tightly beneath him. Officer Canfield
testified that his attempts to restrain the couple to place them
under arrest left him “exhausted.”
Thompson, 922 A.2d at 928.12
Thompson demonstrates that actively fighting a police officer is not
required to prove resisting arrest. Accordingly, I believe the jury was
entitled to draw the same inferences for the necessity of the use of
substantial force herein.
I suggest other cases decided by our Court support the instant verdict.
In Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997), where a
squirming and struggling woman who kicked a police officer in the shin,
required substantial force to overcome. The Wertelet court opined,
“Examples of ‘means’ which would undoubtedly satisfy the Code by requiring
substantial force to overcome would be any kind of significant physical
resistance, including punching, shoving, squirming, biting or kicking.” Id. at
211 (emphasis added).
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12
I do not believe that “exhausted” is a magic word, demonstrating the
necessity of the use of substantial force. Rather, I believe a jury is entitled
to look at the totality of the circumstances to draw reasonable conclusions
and inferences. In Thompson, the jury could well picture the situation and
infer the amount of force needed to pry apart the passive resistors.
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In Commonwealth v. Franklin, 374 A.2d 1360, 1363 (Pa. Super.
1977), a panel of our Court concluded there “can be little doubt” that
evidence a woman used loud and abusive language and required three
officers to handcuff her, was sufficient to support resisting arrest.13 In
Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011), a defendant
twisted his shoulders such that his shoulders hit a police officer who was
trying to take the defendant’s hands from his pockets and arrest him. Such
action was sufficient to support resisting arrest. In Commonwealth v.
Clark, 761 A.2d 190 (Pa. Super. 2000), a defendant fled police after being
pepper sprayed,14 but slipped and fell, whereupon a police officer rolled over
on the ground with the defendant. This constituted substantial force. Most
recently, Commonwealth v. McDonald, 17 A.3d 1282 (Pa. Super. 2011),
related circumstances almost identical to those found in Clark, including the
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13
Regarding the use of substantial force, the specific evidence cited in
Franklin was as follows:
Another struggle ensued between the officers and the appellant
as they attempted to place handcuffs on her and take her out to
the patrol car. The officers succeeded in getting one handcuff on
the appellant, but were having difficulty securing the other one.
Officer Kibler, who was one of the officers in the house at this
time, testified that it took three police officers to finally get the
handcuffs on the appellant.
Franklin, 922 A.2d at 1362.
14
As stated by the Majority, flight alone does not constitute resisting arrest.
Commonwealth v. Miller, 475 A.2d 145 (Pa. Super. 1984).
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defendant’s flight, the defendant slipping and falling, and a tussle on the
ground.
In the present case, the jury was properly charged as follows:
A person cannot commit [resisting arrest] unless he or she
creates a substantial risk of bodily injury or resists by means
justifying or requiring substantial force to overcome his or her
resistance. Thus, you cannot find the defendant guilty if you find
that he merely scuffled with or argued with the police officer.
N.T. Trial, 11/20/2013, at 205.
I believe the evidence presented instantly is comparable to the
evidence cited in the above cases. In light of the this legal precedent, and
applying our well established standard of review, I agree with the trial court
that the jury could conclude that the effort described in the testimony
represented more than a mere scuffle and constituted the use of substantial
force. Therefore, I must dissent from the Majority on this issue.
As noted, although I respectfully dissent from the Majority’s decision
regarding the disposition of the charges on REAP and resisting arrest, I am
in full agreement with the Majority regarding the dismissal of the charges of
harassment and disorderly conduct.
Accordingly, I concur in part and dissent in part.
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