J-S75026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH DAVIS                                :
                                               :
                       Appellant               :   No. 625 EDA 2017

            Appeal from the Judgment of Sentence January 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013135-2014


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 22, 2019

        Appellant Keith Davis appeals from the judgment of sentence imposed

following his conviction for resisting arrest.1         Appellant challenges the

sufficiency of the evidence. We affirm.

        The trial court previously set forth the relevant facts and procedural

history as follows:

        On August 3, 2014, at around 6:00 p.m., Officer Daniel Loesch
        and Officer Brendan Donahue responded to a radio call that a
        robbery was in progress. The officers arrived at a shopping center
        at 29th and Dauphin Street in Philadelphia, where they met with
        the complainant, Nashaya Barnes. Barnes told Officer Loesch that
        she was pistol-whipped and assaulted by “a couple guys” that she
        knew from the area, and that she believed they were headed to
        the area of Marston Street.

        Barnes and the officers then got into the officers’ vehicle and
        began to search for Barnes’ assailants. As the vehicle approached
        York and Marston, Barnes pointed out two individuals whom she
____________________________________________


1   18 Pa.C.S. § 5104.
J-S75026-18


      identified as her assailants. At this time, the officers exited the
      vehicle and approached the two individuals, co-defendants Brian
      Callaway and Harold Mann, who were at a barbecue in an open lot
      being attended by 70 to 80 people. Officer Loesch attempted to
      detain Callaway, and Officer Donahue attempted to detain Mann.
      Officer Loesch struggled with Callaway for approximately a minute
      before he let him go to help Officer Donahue arrest Mann. During
      the struggle Officer Loesch drew his taser, which Mann knocked
      to the ground. Mann then tried to run away, but either fell or was
      tackled and the officers were able to place him in handcuffs and
      put him in the back of the patrol wagon. During this altercation,
      which lasted approximately three to four minutes, Officer Loesch
      called in a citywide assist and between 40 to 60 police vehicles
      arrived at the scene.

      Several bystanders attending the barbecue began arguing with
      police, and the responding officers attempted to clear the crowd
      and calm down the bystanders. While this was happening,
      Barnes, who was still in the back of the officers’ vehicle, knocked
      on the window of the patrol car to get Officer Loesch’s attention,
      and then pointed out [Appellant] as one of her assailants. At the
      time, [Appellant] was engaged in an argument with some of the
      officers in the lot.

      Officer Loesch then approached [Appellant] and attempted to
      arrest him. When he did so, [Appellant] charged towards Officer
      Loesch and a struggle ensued, during which [Appellant] st[r]uck
      Officer Loesch in the head with his forearm. During this struggle,
      three officers came to assist Officer Loesch. The officers were only
      able to get one handcuff on [Appellant], who continued to try to
      pull away and began to flail his arms with the one handcuff on.
      As a result, one of the officers, Roger McFadden, pepper sprayed
      [Appellant]. Only then were the officers able to get the second
      handcuff onto [Appellant]. The officers then placed [Appellant] in
      a patrol wagon and transported him to St. Joseph’s Hospital.

Trial Ct. Op., 9/13/17 at 2-4.

      On November 4, 2016, following a non-jury trial, Appellant was

convicted of resisting arrest. On January 13, 2017, the trial court sentenced




                                     -2-
J-S75026-18



Appellant to nine to twenty-three months’ incarceration with immediate parole

to house arrest.

      Appellant filed a timely pro se notice of appeal on February 10, 2017.

On February 15, 2017, the trial court ordered Appellant to file a Pa.R.A.P.

1925(b) statement within twenty-one days of the order. Appellant failed to

timely comply, and the trial court issued a Rule 1925(a) opinion on April 18,

2017, indicating that all of Appellant’s claims had been waived.

      By order dated April 25, 2017, this Court remanded the matter and

directed the trial court to determine whether counsel for Appellant, Francis W.

McCloskey, Jr., Esq., had abandoned his client on appeal.           See Order,

4/25/17.   Following a hearing on May 2, 2017, the trial court removed

Attorney McCloskey as counsel and appointed new counsel, Attorney David

Barrish, Esq. to represent Appellant.

      On July 28, 2017, this Court remanded the matter for Appellant to file a

Rule 1925(b) statement within twenty-one days of the order and directed the

trial court to file a supplemental Rule 1925(a) opinion. Both the trial court

and Appellant timely complied.

      Appellant raises one question on appeal: “Did the trial court err when it

found that there was sufficient evidence to prove, beyond a reasonable doubt,

that [Appellant] was guilty of the criminal offense of resisting arrest?”

Appellant’s Brief at 2 (full capitalization omitted).   In support of his claim,

Appellant notes that there was no testimony to establish that he “punched,

shoved, squirmed, bit or kicked” any of the officers. Id. at 13.

                                        -3-
J-S75026-18



      Our standard of review for sufficiency of the evidence claims is well-

settled. “The determination of whether sufficient evidence exists to support

the verdict is a question of law; accordingly, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Edwards, 177 A.3d

963, 969 (Pa. Super. 2018) (citation omitted).        In assessing Appellant’s

sufficiency challenge, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the crime

beyond a reasonable doubt.” Commonwealth v. Sweitzer, 177 A.3d 253,

257 (Pa. Super. 2017) (citation omitted).

      Additionally, we note that

      [t]he evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted).

      Section 5104 of the Crimes Code defines resisting arrest 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


                                     -4-
J-S75026-18


      else, or employs means justifying or requiring substantial force to
      overcome the resistance.

See 18 Pa.C.S. § 5104.

      We have stated that “[a] person resists arrest by conduct which ‘creates

a substantial risk of bodily injury’ to the arresting officer or by conduct which

justifies   or   requires   ‘substantial   force   to   overcome     resistance.’”

Commonwealth v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984).                   This

statutory language “does not require the aggressive use of force such as a

striking or kicking of the officer.” Id.

      The trial court addressed Appellant’s claim as follows:

      It is true that Officers McFadden and Loesch testified that
      [Appellant] never threw a “bona fide punch” at them. However,
      the plain language of the statute criminalizes attempts to prevent
      a lawful arrest where the defendant either “creates a substantial
      risk of injury to the public servant,” or “employs means justifying
      or requiring substantial force to overcome the resistance.” 18
      Pa.C.S. § 5104. Accordingly, the statute “does not require the
      aggressive use of force such as a striking or kicking of the officer.”
      Commonwealth v. McDonald, 17 A.3d 1282, 1285 (Pa. Super.
      2011) (quoting Commonwealth v. Miller, 475 A.2d 145, 146
      (Pa. Super. 1984)). As our Superior Court has stated, “even a
      defendant’s passive resistance that required police to use
      substantial force to arrest [him] was sufficient to sustain a
      conviction for resisting arrest.” McDonald, 17 A.3d at 1285
      (citing Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.
      Super. 2007)). If the police need to employ pepper spray, or a
      taser, to effect an arrest on a defendant, that clearly constitutes
      “substantial force” within the meaning of the statute. McDonald,
      17 A.3d at 1286 (taser required to subdue defendant);
      Commonwealth v. Clark, 761 A.2d 190, 193 (pepper spray used
      in attempt to subdue defendant), appeal denied, 771 A.2d 1278
      (Pa. 2001).

      Here, when Officer Loesch attempted to lawfully arrest
      [Appellant], [Appellant] charged at Officer Loesch and a struggle


                                      -5-
J-S75026-18


      ensued as four officers attempted to detain [Appellant]. The
      officers were only able to get one handcuff on [Appellant], as
      [Appellant] kept flailing his arms and attempting to pull away as
      the officers struggled to arrest him. At one point during the
      struggle, [Appellant] struck Officer Loesch in the head with his
      forearm. [Appellant] was subdued only after Officer McFadden
      used pepper spray on him. Unquestionably, this compelling
      evidence was legally sufficient to support [Appellant’s] conviction
      for resisting arrest.

Trial Ct. Op., 9/13/17, at 4-5.

      We agree with the trial court’s assessment, which is both supported by

the record and free from legal error. See Edwards, 177 A.3d at 969. Viewed

in the light most favorable to the Commonwealth as the verdict winner, the

evidence established that Appellant engaged in conduct that required the

officers to use “substantial force to overcome” his resistance. See 18 Pa.C.S.

§ 5104; see Thompson, 922 A.2d at 928; Clark, 761 A.2d at 193.

Accordingly, Appellant’s challenge to the sufficiency of the evidence is

meritless. See Sweitzer, 177 A.3d at 257.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/19




                                     -6-
