J-S29018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TRENT JERRELL PATRICK

                            Appellant                    No. 1265 WDA 2014


             Appeal from the Judgment of Sentence June 30, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000676-2014


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 01, 2015

        Appellant, Trent Jerrell Patrick, appeals from the June 30, 2014

judgment of sentence of one year’s probation, imposed after the trial court

found him guilty of one count of resisting arrest.1 After careful review, we

affirm.

        The trial court set forth the facts of this case as follows.

                    At approximately 1:00 A.M. on December 25,
              2013, City of Pittsburgh [p]olice [o]fficer Jonathan
              Craig responded to a call for an individual banging on
              a door with a hammer at 1202 Montezuma Street,
              Apartment 2, in the Lincoln-Lemington-Belmar
              section of the City of Pittsburgh, Allegheny County.
              Officer Craig arrived at the location within minutes of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 5104.
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           receiving the call, and found Appellant on the porch
           of the residence. Officer Craig also observed fresh
           damage on the door to the apartment consistent
           with someone striking the door several times with a
           hammer.     Based on these circumstances, Officer
           Craig decided to detain Appellant.

                 Appellant left the porch when he noticed
           Officer Craig approach. Officer Craig inquired about
           the hammer with no response from Appellant.
           Officer Craig again asked Appellant where the
           hammer was, and Appellant responded[,] “[w]hat
           hammer?”       Officer Craig attempted to stop
           Appellant, but Appellant moved past Officer Craig
           and immediately ran away. Officer Craig was able to
           subdue Appellant after a ten[-]yard chase by
           pushing him to the ground.

                  Appellant landed on the ground on his
           stomach, with both hands hidden beneath him. At
           that time, Officer Craig was concerned for his safety
           because he did not know if Appellant possessed the
           hammer which was used to damage the door, or if
           he was otherwise armed.         Appellant repeatedly
           refused to comply with orders to show his hands,
           and kept his hands beneath his body. As a result,
           Officer Craig [with his partner’s assistance] had to
           use substantial force, including striking Appellant
           several times, in order to remove and secure
           Appellant’s hands.      Appellant was arrested and
           charged as noted [below]. [Thereafter, the officers
           recovered a hammer from the porch of the address
           they responded to, 1202 Montezuma Street.]

Trial Court Opinion, 12/15/14, at 3-4.

     By criminal information filed on March 3, 2014, the Commonwealth

charged Appellant with the aforementioned offense, as well as one count

each of possessing instruments of crime, loitering and prowling at night




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time, and public drunkenness.2 On June 30, 2014, following a bench trial,

the trial court found Appellant guilty of resisting arrest. The trial court found

Appellant not guilty of the remaining charges. That same day, the trial court

sentenced Appellant to one year’s probation. Appellant did not file a post-

sentence motion. Appellant filed a timely notice of appeal on July 30, 2014.3

        On appeal, Appellant presents the following two issues for our review.

              I.    Did the trial court err when it found [Appellant]
                    guilty  of     resisting  arrest   because    the
                    Commonwealth failed to prove, beyond a
                    reasonable doubt, that there existed a lawful
                    arrest?

              II. Did the trial court err when it found [Appellant]
                  guilty of resisting arrest where the evidence was
                  legally insufficient to prove, beyond a reasonable
                  doubt, that [Appellant] created a substantial risk
                  of bodily injury or employed means justifying or
                  requiring substantial force to overcome the
                  resistance?

Appellant’s Brief at 5.

        In   both    issues,   Appellant       challenges   the   sufficiency   of   the

Commonwealth’s evidence. We begin by noting our well-settled standard of

review. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the
____________________________________________


2
    18 Pa.C.S.A. §§ 907(a), 5506, and 5505, respectively.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden 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. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).        “[T]he trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced, is free to

believe all, part or none of the evidence.”           Commonwealth v. Orie, 88

A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d

925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      Instantly, Appellant was convicted of resisting arrest.          A person is

guilty of resisting arrest “if, with the intent of preventing a public servant

from effecting a lawful arrest or discharging any other duty, the person


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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.

      We first address Appellant’s argument as to the “lawful arrest” element

of resisting arrest. Specifically, Appellant contends the Commonwealth did

not show that the underlying arrest was lawful because Appellant’s conduct

did not give the police probable cause to arrest him. Appellant’s Brief at 16.

“[T]o be convicted of resisting arrest, the underlying arrest must be lawful.”

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007) (citation

omitted). Further, “the lawfulness of an arrest depends on the existence of

probable cause to arrest the defendant.”        Id. (citation omitted).   Our

Supreme Court has described probable cause as follows.

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the arrest, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a man of reasonable caution in the belief
            that the suspect has committed or is committing a
            crime. The question we ask is not whether the
            officer’s belief was correct or more likely true than
            false. Rather, we require only a probability, and not
            a prima facie showing, of criminal activity.        In
            determining whether probable cause exists, we apply
            a totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in

original) (citations and internal quotation marks omitted).

      In this case, the totality of the circumstances demonstrates that there

was a probability that Appellant had engaged in criminal activity. At 1:00

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a.m., two police officers, within minutes of receiving information from

dispatch that a man had been banging on the door of an apartment with a

hammer, observed Appellant on the porch of that apartment and fresh

hammer marks on the door. N.T, 6/30/14, at 6-7, 10. When Officer Craig

started to approach the apartment, Appellant began walking away from the

porch, toward Officer Craig. Id. at 7. Appellant ignored the officer’s initial

attempt to speak with him. Id. Upon Officer Craig mentioning a hammer

and attempting to stop Appellant, Appellant fled. Id. at 7-8. After a ten-

yard foot chase, the officer managed to push Appellant to the ground. Id.

at 8. As the trial court found, “Officer Craig had probable cause to believe

that Appellant had damaged the door with a hammer based on the

circumstances he encountered, including the dispatch call, the damage to

the door, and Appellant’s evasive conduct, and thus the arrest was lawful.”

Trial Court Opinion, 12/15/14, at 6. This evidence was sufficient to enable

the trial court to conclude that the arrest was lawful.     See 18 Pa.C.S.A.

§ 5104; Jackson, supra.      Accordingly, the evidence, viewed in the light

most favorable to the Commonwealth as the verdict winner, supports the

verdict, and Appellant is not entitled to relief on his first issue.      See

Patterson, supra; Diamond, supra.

      In his second issue, Appellant challenges the sufficiency of the

evidence on the “resistance” element of resisting arrest.         Specifically,

Appellant contends he did not create a substantial risk of bodily injury to the


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officers and his actions of lying on his hands, requiring police to forcibly

remove his hands from underneath his body, did not justify or require

substantial force to overcome. Appellant’s Brief at 23-24.

      The resistance element in Section 5104 is disjunctive.       18 Pa.C.S.A.

§ 5104.    To be convicted of resisting arrest, a person must employ

resistance that either “creates a substantial risk of bodily injury to the public

servant or anyone else” or “justif[ies] or requir[es] substantial force to

overcome[.]” Id. “This statutory language 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) (citation and internal

quotation marks omitted), appeal denied, 29 A.3d 372 (Pa. 2011).

However, Section 5104 is not intended to apply to “minor scuffling which

occasionally takes place during an arrest.” 18 Pa.C.S.A. § 5104 cmt.

      This Court has held that a defendant’s “use of passive resistance

requiring substantial force to overcome provide[s] sufficient evidence for

upholding [a] resisting arrest conviction.” Commonwealth v. Thompson,

922 A.2d 926, 928 (Pa. Super. 2007). In Thompson, a police officer forced

the defendant and her husband to the ground after informing the defendant

that he was arresting her husband.          Thompson, supra at 927.          The

defendant and her husband did not aggressively use force against the

officer; instead, they interlocked their arms and legs to prevent the officer

from applying handcuffs. Id. The defendant did not respond to the officer’s


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numerous verbal commands to release her hands from underneath her

husband’s body.        Id.   This Court concluded that the evidence of the

defendant passively resisting arrest by holding her arms tightly beneath her

husband, coupled with the officer’s testimony that his attempts to overcome

the resistance were exhausting, was sufficient to sustain her conviction of

resisting arrest. Id. at 928.

      Similarly, in this case, the evidence showed that Officer Craig was

required   to    use   substantial    force     to   overcome   Appellant’s    “passive

resistance.” When Officer Craig attempted to restrain Appellant, he was on

the ground lying on his arms.              Appellant refused to comply with Officer

Craig’s repeated demands to show his hands, place them behind his back,

and submit to being handcuffed.             N.T., 6/30/14, at 8.   Instead, Appellant

held his arms beneath his body, engaging in a test of physical strength with

Officer Craig. Id. at 9. Officer Craig struck Appellant several times in an

attempt to get Appellant’s hands out from under his body.                     Id.   Still,

Appellant would not yield.           Id.     Eventually, Officer Craig was able to

handcuff Appellant’s left hand while his partner forcibly removed Appellant’s

right arm. Id. at 9-10. Therefore, viewed in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to prove substantial force was required to overcome Appellant’s

resistance.     See 18 Pa.C.S.A. § 5104; Thompson, supra.                As a result,




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Appellant is not entitled to relief on his second issue.   See Diamond,

supra.

     Based on the foregoing, we affirm the June 30, 2014 judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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