J-S46003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMAL EL PURNELL,

                            Appellant                  No. 2538 EDA 2015


        Appeal from the Judgment of Sentence Entered March 30, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-CR-0045891-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 02, 2016

        Appellant, Jamal El Purnell, appeals from the judgment of sentence of

two years’ probation, imposed on March 30, 2015, in the Philadelphia County

Municipal Court, following his conviction for resisting arrest, 18 Pa.C.S. §

5104.     On appeal, Appellant challenges the sufficiency of the evidence to

sustain his conviction. After careful review, we affirm.

        The facts underlying Appellant’s conviction are as follows:

              On November 29, 2013, at approximately 9:00 p.m.,
        Police Officer Bickel and his partner were on duty performing a
        “park and walk” at the Hill Creek Homes housing project. It is a
        high crime area; there are drug and narcotic sales, robberies,
        and burglaries. In the middle of the development, at 534 Adams
        Avenue, the officers encountered Appellant.       Appellant was
        walking very quickly in a perpendicular direction to the officers.
        Officer Bickel yelled “yo” to Appellant. Appellant then stopped
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*
    Retired Senior Judge assigned to the Superior Court.
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      walking, saw the officers, turned around, and discarded items
      into the grass behind him. The officers crossed the street and
      walked up to Appellant. Appellant turned around with his hands
      out to his sides and became verbally aggressive to the officers.
      Appellant asked why the officers were stopping him and
      proceeded to yell at them. At this point, Officer Bickel walked
      past Appellant to the area where Appellant previously discarded
      the items and found drugs, specifically, cocaine, crack cocaine,
      and marijuana.       While Officer Bickel was picking up the
      discarded drugs, his partner told Appellant to put his hands on
      his head so that [the officer] could do a frisk for weapons. While
      Officer Bickel’s partner was frisking Appellant, Appellant’s hands
      kept “coming down” from his head. Officer Bickel’s partner
      sought to put Appellant in handcuffs to restrain him. When he
      had one handcuff on Appellant, Appellant tried to run. At that
      point, the officer grabbed Appellant by the wrist and the two of
      them fell to the ground. Appellant was still trying to get away by
      pulling himself away from the officer. Officer Bickel saw what
      was happening and ran over to Appellant and jumped on his
      back while [the officer’s] partner was still wrapped around
      Appellant’s waist. At this point, Officer Bickel, his partner, and
      Appellant were all on the ground. Officer Bickel yelled, “police,
      police, give me your hands, stop resisting.” Officer Bickel and
      his partner were eventually able to place Appellant into custody.
      None of the officers sustained any injuries. The episode lasted
      approximately thirty seconds.

Trial Court Opinion (TCO), 1/13/16, at 1-3 (citations to the record omitted).

      Based on these facts, Appellant was charged with resisting arrest,

possession of a controlled substance, and possession of a small amount of

marijuana, 35 P.S. §§ 780-113(a)(16) and (a)(31), respectively. On March

30, 2015, following a non-jury trial before the Philadelphia County Municipal

Court, Appellant was convicted of resisting arrest, but acquitted of the

possession offenses.    He was sentenced that same day to two years’

probation. On April 28, 2015, Appellant filed a petition for writ of certiorari




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in the Court of Common Pleas of Philadelphia County. On July 27, 2015, the

court denied Appellant’s petition.

      Appellant filed a timely notice of appeal with this Court, and also

timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.        Herein, he presents one

question for our review: “Was not the evidence insufficient as a matter of

law to sustain [A]ppellant’s conviction for resisting arrest, where [A]ppellant

did not create a substantial risk of bodily injury to the police officer, and

where his conduct did not require          substantial force to overcome?”

Appellant’s Brief at 3.

      Preliminarily, we note that,

      [a] lower court's decision on the issuance of a writ of certiorari
      will not be disturbed absent an abuse of discretion. Certiorari
      provides a narrow scope of review in a summary criminal matter
      and allows review solely for questions of law. Questions of fact,
      admissibility, sufficiency or relevancy of evidence questions may
      not be entertained by the reviewing court on certiorari. A
      petition for a writ of certiorari provides an aggrieved party an
      alternative to a trial de novo in the Court of Common Pleas.

Commonwealth v. Elisco, 666 A.2d 739, 740–741 (Pa. Super. 1995)

(internal citations omitted). Furthermore,

      [i]n reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it


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      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      The offense of resisting arrest is defined in 18 Pa.C.S. § 5104, as

follows:

      § 5104. Resisting arrest or other law enforcement

      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 (emphasis added).          Moreover, proving the crime of

resisting arrest “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).        Indeed, even passive resistance, which

requires officers to use substantial force to overcome, has been deemed

sufficient to sustain a conviction for resisting arrest. See Commonwealth

v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007).

      In the present case, Appellant argues that the evidence was

insufficient to prove that he created a substantial risk of bodily injury to the

officers, or that substantial force was required to overcome his resistance.

Appellant explains that his “conduct consisted of letting his elbow drop from

his head while being frisked; trying to get away from the police; and while

on the ground with police on top of him, keeping his hand near his waist for

less than thirty seconds.” Appellant’s Brief at 7. Appellant stresses that he


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“did not strike the officers” or cause injury to either officer. Id. For these

reasons, he maintains that this conduct did not create a risk of bodily injury

to the officers, nor require substantial force to overcome.

      We disagree, as we deem the evidence - viewed in the light most

favorable to the Commonwealth - sufficient to prove that Appellant’s

resistance required substantial force to quell.       The following two cases

support our decision. First, in Thompson, this Court upheld the defendant’s

resisting arrest conviction based on the following facts:

      Officer Ewing testified that she struggled to pull [Thompson]
      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 [her] back, she
      refused to obey and held her arms tightly beneath [her]. Officer
      Canfield testified that his attempts to restrain the couple to place
      them under arrest left him “exhausted.”

Thompson, 922 A.2d at 928.

      Second, in Commonwealth v. Clark, 761 A.2d 190 (Pa. Super.

2000), an officer tried to arrest Clark, at which point Clark “took a fighting

stance,” and “the officer had to pepper-spray” him. Id. at 193. The officer

then had to “chase [Clark] down traffic lanes before apprehending him. Upon

attempting to apprehend [Clark] there was a struggle, and the arresting

[o]fficer had to roll [Clark] over on the ground to handcuff him.” Id. This

Court concluded that “[s]ubstantial force was thus required to overcome

[Clark’s] resistance to the arrest.” Id. at 193-94.




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        Here, as in Clark, Appellant tried to escape an officer’s attempts to

arrest him. While no pepper spray was used, the officer did have to wrap

his arms around Appellant’s waist and drag Appellant to the ground.

Nevertheless, Appellant’s resistance did not cease; instead, he continued to

struggle to free himself from the officer’s grasp, requiring Officer Bickler to

assist his partner by jumping on Appellant’s back.         As in Thompson,

Appellant ignored Officer Bickler’s verbal commands to stop resisting, and

continued to keep his free, un-cuffed hand at his waist rather than bringing

it to his back to allow the officer to handcuff him.          Also similar to

Thompson, and more egregious than in Clark, it took the efforts of two

officers to overcome Appellant’s resistance and handcuff him.       In light of

Appellant’s conduct, and this Court’s decisions in Thompson and Clark, we

conclude that substantial force was required to overcome Appellant’s

resistance.

        The cases on which Appellant relies do not compel the opposite result.

First, in Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981), a

police officer attempted to arrest the defendant, who was intoxicated. Id. at

1148.     The defendant “began to shake himself violently, to wiggle and

squirm” in an effort to escape the officer’s grasp.    Id. at 1148-1149.     It

ultimately took three officers to subdue him. Id. During the incident, one

officer sustained a knee injury.    Id.    In concluding that the defendant’s

conduct did not amount to resisting arrest, we stressed that his “actions in

attempting to escape were no more than efforts ‘to shake off the

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policeman's detaining arm.’ [The defendant] neither struck, nor struck out

at the arresting officers; nor did he kick or push them. At most this was a

‘minor scuffle’ incident to an arrest.” Id. at 1150 (citation omitted).

       Notably, the Rainey panel did not explicitly discuss the ‘substantial

force’ element of section 5104.           Therefore, Rainey does not offer much

guidance to our decision herein.1 Additionally, the other two cases on which

Appellant relies are inapplicable.             For instance, in Commonwealth v.

Eberhardt, 450 A.2d 651 (Pa. Super. 1982), we discussed why the evidence

was insufficient to prove that the defendant risked substantial injury to the

arresting officers, but we did not address the substantial force aspect of

resisting arrest because the defendant “was not charged with this part of

section 5104 in the information.”              Id. at 653.   In Commonwealth v.

Wertelet, 696 A.2d 206 (Pa. Super. 1997), this Court vacated the

defendant’s resisting arrest conviction because his arrest was illegal; we did

not discuss the sufficiency of the evidence to prove the defendant caused a

substantial risk of injury, or that substantial force was required to subdue



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1
   Moreover, not long after Rainey, this Court characterized, without
specificity, the above-quoted language of Rainey as “dictum” that should
not be read as suggesting that “an essential element of the crime of
resisting arrest [is] that the actor strike or kick the arresting officer.”
Commonwealth v. Miller, 475 A.2d 145, 146 n.4 (Pa. Super. 1984). Thus,
while Rainey can be read as supporting that a ‘minor scuffle’ is insufficient
to constitute resisting arrest, the precedential impact of the remainder of the
Rainey decision is questionable.



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him.    Id. at 208.      Clearly, neither Eberhardt nor Wertelet control our

decision herein.

       In sum, Thompson and Clark support our conclusion that Appellant’s

resistance required substantial force to overcome.2       The cases on which

Appellant relies to challenge his resisting arrest conviction are either

inapplicable or unconvincing regarding that aspect of section 5104. Because

Appellant does not dispute the legality of his arrest, the elements of resisting

arrest were satisfied in this case.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




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2
   Accordingly, we need not address whether the evidence proved that
Appellant’s conduct caused a substantial risk of bodily injury to the arresting
officers.



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