J-S15012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RONALD B. RICHARDSON

                         Appellant                   No. 3721 EDA 2016


     Appeal from the Judgment of Sentence Entered November 4, 2016
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0010430-2015


BEFORE: STABILE, DUBOW, JJ. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                                Filed July 20, 2018

     Appellant, Ronald B. Richardson, appeals from the November 4, 2016

judgment of sentence imposing nine to eighteen months of incarceration for

resisting arrest (18 Pa.C.S.A. § 5104). We affirm.

     The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

           On June 1, 2015, Appellant reported to the office of Parole
     Agent David Knorr which is located at 2630 N. 13th Street,
     Philadelphia, PA. Appellant was ordered to report on this day
     because he had been repeatedly submitting urine tests positive
     for THC, marijuana. During the course of this interview Agent
     Knorr questioned Appellant regarding the transportation that
     brought him to the officer. After some questioning, it was
     determined that he had driven himself to the office in violation of
     his parole and Appellant was placed into custody. Whilst Appellant
     remained in Agent Knorr’s office, Parole Agents searched his car
     and found a cell phone belonging to Appellant. Based on some
     information found in the cell phone, Appellant was questioned
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      about a car accident involving his mother and himself. At this
      point Appellant ‘got louder’ and stood up and started to struggle
      with Agent Knorr. He was in handcuffs and a restraint belt. A
      struggle ensued and Agent Knorr along with Agent Hernandez
      were able to get Appellant on the ground. At this point, Appellant
      was moved to a holding cell in anticipation of him being
      transferred to another facility.

Trial Court Opinion, 7/31/17, at 2 (record citations omitted).

      On November 4, 2016, the parties proceeded to a bench trial. The trial

court found Appellant guilty of resisting arrest and immediately sentenced

him. This timely appeal followed. Appellant raises two issues for our review:

            I.     Was the verdict based on legally insufficient evidence
                   where [Appellant’s] conduct did not expose the
                   officers to a substantial risk of bodily injury and the
                   substantial force used by the officers was
                   unnecessary?

            II.    Was the judgment invalid as the charge of conviction
                   was materially different than [sic] the charged
                   offense?

Appellant’s Brief at 5.

      In his first argument, Appellant claims the Commonwealth produced

insufficient evidence to support his conviction for resisting arrest.          Our

standard of review is well settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law.      When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most



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      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Thompson, 93 A.3d 478, 489 (Pa. Super. 2014) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).

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

18 Pa.C.S.A. § 5104. Appellant claims the Commonwealth failed to prove that

he created a substantial risk of bodily injury or employed means requiring

police to use substantial force.

      Evidence of “passive resistance” that requires police to use substantial

force is sufficient to sustain a conviction under § 5104. Commonwealth v.

McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011), appeal denied, 29 A.3d

372 (Pa. 2011) (citing Commonwealth v. Thompson, 922 A.2d 926, 928

(Pa. Super. 2007)).     Aggressive force such as striking or kicking is not

necessary. Id. (citing Commonwealth v. Miller, 475 A.2d 145, 146 (Pa.

Super. 1984)). In McDonald, the defendant fled on foot requiring police to

chase him through traffic. McDonald, 17 A.3d at 1286. Multiple officers had

to hold the defendant down once he was apprehended, and he did not cease

his resistance until an officer tasered him. Id. In Thompson, the defendant

husband and wife were guilty of resisting arrest where they interlocked their



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arms and legs, requiring a substantial amount of force to separate them.

Thompson, 922 A.2d at 927.

      Instantly, the record reflects that Appellant was in a restraining belt and

shackles after Agent Knorr arrested him for violating his parole. N.T. Trial,

11/4/16, at 18. Appellant was to be placed in a holding cell, but before that

happened he became agitated, stood up, and cursed at Agent Knorr. Id. at

19.   When Agent Knorr attempted to push Appellant down into his chair,

Appellant “leaned his left shoulder down and rammed [Agent Knorr] into the

wall.” Id. at 19. Appellant continued to resist as another agent came to Agent

Knorr’s assistance and wrestled Appellant to the ground.         Id. at 20-22.

Appellant continued to resist as additional agents arrived, and continued to

resist even after he was tasered. Id. at 22-23. This evidence is more than

sufficient to establish that Appellant forced police to use substantial force to

subdue him.

      Appellant also argues the agents used excessive force against him, and

that he is not guilty under § 5104 because his actions did not require that

excessive force. Appellant’s Brief at 14. Appellant argues that the use of a

Taser, in particular, was excessive. Id. This argument disregards the law of

substantial force under § 5104. In Thompson for example, we concluded

that substantial force was necessary when the two defendants interlocked

their arms and legs. Thompson, 922 A.2d at 927-28. After a struggle of

several minutes, police used pepper spray to get the couple disengaged. Id.


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We upheld the conviction, noting that the defendant’s argument “completely

ignores the statutory language of section 5104 criminalizing resistance

behavior that requires substantial force to surmount.” Id. at 928. In this

case, as well, Appellant’s argument simply ignores the statutory language.

        In his second argument, Appellant claims the trial court found him guilty

of a different offense than resisting arrest. He claims the Commonwealth’s

theory at trial was that Appellant created a substantial risk of bodily injury

while resisting arrest. Ultimately, the trial court found that Appellant forced

the parole agents to use substantial force to discharge a duty other than arrest

(the court found, correctly, that Agent Knorr had already arrested Appellant

at the time of the altercation). We observe that, by its plain language, § 5104

covers two scenarios—resisting arrest or preventing an officer from

discharging another lawful duty. Appellant does not dispute that post-arrest

procedures, in this case moving the arrestee to a holding cell, constituted a

lawful duty on the part of Agent Knorr and his fellow agents.          Nor does

Appellant dispute that § 5104 applies to that scenario. Rather, he claims that

the separate clauses of § 5104 create separate offenses. Appellant does not

cite any law in support of this remarkable proposition, and we have found

none.

        Instead, Appellant cites Commonwealth v. Sinclair, 897 A.2d 1218

(Pa. Super. 2006), in which this Court noted that the purpose of a criminal

information is to “apprise the defendant of the charges against him so that he


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may have a fair opportunity to prepare a defense.” Id. 1223. Indeed, this is

a fundamental requirement of due process. In Sinclair, we analyzed whether

the defendant was prejudiced by an amended information.      Id.   Instantly,

Appellant criticizes the Commonwealth for never seeking to amend the

information.   In so doing, he simply ignores that he was convicted of the

charged offense. Furthermore, Appellant does not (and cannot) claim that he

was unaware of the pertinent facts. Fundamentally, Appellant argues that he

was denied due process of law. Given his notice of the charge against him

and the supporting facts, we cannot agree.

     Because we have found no merit in either of Appellant’s assertions of

error, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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