J-S22044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CURTIS WALLACE HALL,

                            Appellant                  No. 894 MDA 2016


             Appeal from the Judgment of Sentence May 20, 2016
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0003165-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 25, 2017

        Appellant, Curtis Wallace Hall, appeals from the judgment of sentence

imposed after his jury conviction of resisting arrest and loud, disturbing,

unnecessary noise.1 We affirm.

        We take the following facts from the trial court’s July 25, 2016 opinion

and our independent review of the certified record.

             On April 6, 2015, Detective Dennis Simmons [] and
        Detective Donald Heffner [] of the Harrisburg Bureau of Police
        Organized Crime and Vice Control Unit were in plain clothes in an
        unmarked vehicle patrolling the city of Harrisburg.            At
        approximately 3:00 P.M., they were in the area of 13th and
        Swatara Streets when they heard loud music coming from
        nearby. As they turned east onto Swatara Street, Detective
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 5104 and Local Ordinance § 3-343(2)(A).
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     Simmons observed a red Dodge Magnum parked on the south
     side of the street that was the source of the loud music. The
     music was so loud that the windows on the vehicle were
     vibrating. When they passed the vehicle, Detective Simmons
     observed Appellant to be in the driver’s seat. At that time,
     Detective Simmons made the decision to issue a citation.[a]
     Since they were in an unmarked vehicle, they had to drive
     around the block to get back to where the vehicle was parked.
        [a]
           There is a city ordinance in Harrisburg which prohibits
        loud noise and loud music, and a violation occurs when
        you can hear the music/noise within fifty (50) feet of
        where you are standing. It is a summary citation which
        Detective Simmons testified that he has issued numerous
        times as both a uniformed officer and a detective.

         By the time the detectives came back around and parked on
     Swatara Street, Detective Simmons observed Appellant in the
     yard to the rear of 401 South 13th Street. The yard was fenced
     in, but the gate was open. When Detective Simmons exited his
     vehicle, Appellant was in the yard of the residence walking
     towards the rear entrance to the building.

         Detective Simmons approached Appellant in the yard,
     identified himself as police and asked for [Appellant’s]
     identification. Although Detective Simmons testified that he had
     recognized Appellant from previous encounters, he did not know
     his name at that time.         Appellant refused to produce his
     identification and asked, in an elevated voice, “why are you
     running up on me?”         Detective Simmons again asked for
     Appellant’s identification and Appellant continued to ask why.
     Detective Simmons then explained that he was going to receive
     a citation for the loud music coming from his vehicle.

         While talking to Detective Simmons, Appellant tried to enter
     the rear door of the residence on at least two (2) occasions, as
     well as reached into his pockets a couple of times, and was
     directed to stop. Appellant began to tense up and he appeared
     to be physically aggressive towards [the officer,] as Appellant
     was clenching his fists and asking over and over in an elevated
     volume why Detective Simmons was “running up on him”.
     Detective Simmons again explained that he was going to issue
     a citation for the noise, and needed Appellant’s identification in
     order to do so. Appellant stated that Detective Simmons had


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       no right to stop him, and Detective Simmons responded that it
       was an official police investigation and Appellant was not free to
       leave at that point. Appellant continued to repeat that he had
       no right to stop him and that he had no right to be on his
       property.

           Since Appellant was not complying with verbal commands,
       and was becoming [increasingly] agitated and aggressive,
       Detective Simmons made the decision to detain Appellant,
       primarily for officer safety. At that point, Detective Simmons did
       not know whether Appellant was going to flee or produce a
       weapon. Detective Simmons grabbed Appellant’s left arm in an
       attempt to detain him, and Appellant pulled away from him.
       Detective Simmons gave repeated commands to Appellant to
       show his hands and Appellant refused. Appellant then began to
       struggle with Detective Simmons─pulling away from him, and
       shifting his weight back and forth from his dominant foot to his
       other foot in what Detective Simmons described as a “fighting
       stance”. At this point, Detective Heffner came over to assist.

           Appellant continued to be uncooperative, moving his arms
       forward, pulling away from both Detective Heffner and Detective
       Simmons. The detectives were forced to push Appellant against
       a wall in order to gain control of his arms. Appellant continued
       to struggle, and eventually was handcuffed.         At this time,
       Detective Heffner radioed for additional units as backup.

           In the midst of the struggle between Appellant and the
       detectives, several people came out of the residence where the
       incident began and started to gather around. One of those
       people was Appellant’s brother and co-defendant, Donell Charles
       Hall [],[2] who approached the scene and began yelling at them
       and asking why they were wrestling his brother. . . . At this
       time, there were approximately fifteen (15) to twenty (20)
       people that had come out of their residences to see what was
       going on. The crowd was yelling and cursing, and ultimately
       made the entire situation chaotic.

(Trial Court Opinion, 7/25/16, at 2-5) (record citations omitted).
____________________________________________


2
  Donell Charles Hall filed a separate appeal of his judgment of sentence
related to his participation in this matter, at docket number 895 MDA 2016.



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      On May 20, 2016, a jury convicted Appellant of the aforementioned

charges.   The same day, the court sentenced him to twenty-four months’

intermediate punishment, which included ninety days in the Dauphin County

Work Release Center, three months of house arrest with electronic

monitoring, and eighteen months of probation. Appellant timely appealed on

May 25, 2016, and filed a concise statement of errors complained of on

appeal, pursuant to the court’s order, on June 8, 2016. The trial court filed

an opinion on July 25, 2016. See Pa.R.A.P. 1925.

      Appellant raises one issue for our review:

      I.    Whether the evidence at trial was insufficient to prove that
      Appellant committed the crime of resisting arrest where the
      Commonwealth failed to prove beyond a reasonable doubt that
      substantial force was required to overcome Appellant’s reaction
      to police and where the Commonwealth failed to prove that
      Appellant’s actions created a risk of bodily injury to a public
      servant?

(Appellant’s Brief, at 4).

      Our standard of review is well-settled:

             In reviewing the sufficiency of the evidence, we must
      determine whether the evidence admitted at trial, and all
      reasonable inferences drawn from that evidence, when viewed in
      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Reese, 2017 WL 750789, at *5 (Pa. Super. filed Feb.

27, 2017) (citation omitted). Pursuant to section 5104 of the Crimes Code:


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            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.

      In this case, Appellant argues that the evidence was insufficient to

support the crime of resisting arrest where “the Commonwealth failed to

prove that substantial force was required to overcome [his] reaction, and

that [his] actions created a risk of bodily injury to a public servant.”

(Appellant’s Brief, at 10). We disagree.

             The statute, it is clear, does not require the aggressive use
      of force such as a striking or kicking of the officer. 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 the
      resistance.”

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

omitted) (emphasis added).       In other words, “the statute includes the

disjunctive phrase ‘or employs means justifying or requiring substantial force

to overcome resistance.’”   Commonwealth v. Lyons, 555 A.2d 920, 925

(Pa. Super. 1989) (concluding that elements for resisting arrest were met

where it took four deputies to subdue appellant, thereby requiring

substantial force “to overcome appellant’s resistance to the arrest.”)

(citations omitted).

      Here, the trial court explained:


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     Detective Simmons testified that he initially approached
     Appellant in the yard and asked for his identification so that he
     could issue a citation for the noise violation. (See N.T. Trial,
     5/19/16, at 18, 20). Appellant refused to provide identification
     and was uncooperative with verbal commands to do so. (See
     id. at 20-21).    After being told to stop reaching into the
     residence and his pants pockets, Detective Simmons decided to
     detain Appellant as he was not sure whether he was going to flee
     or produce a weapon. (See id. at 21-23). Appellant pulled
     away and struggled with Detective Simmons. (See id. at 23-
     24). He was flailing his arms and body around in an attempt to
     break the [] grasp [of Detectives Simmons and Heffner]. (See
     id. at 25-26, 60, 62-63). To gain control and leverage, the
     detectives were forced to push Appellant up against a wall. (See
     id. at 24-25). During the whole encounter Appellant was yelling
     and screaming at the detectives. (See id. at 20, 22, 88-90).

           Even after the detectives were able to gain some control,
     Appellant continued to struggle and yell at the detectives as they
     were trying to handcuff him. (See id. at 26, 60). Detective
     Simmons stated that it took approximately five (5) minutes or
     longer to handcuff Appellant [and his co-defendant]. (See id. at
     32). A compliant person typically takes about three (3) seconds
     to handcuff. (See id.)

            Detective Heffner also testified during the trial, and his
     testimony corroborated that of Detective Simmons. Detective
     Heffner stated that Appellant became verbally aggressive as
     soon as Detective Simmons made initial contact with him. (See
     id. at 88). He further stated that after pushing Appellant against
     the wall, the detectives had to wrestle with him for a few
     minutes before being able to control him. (See id. at 89-90).
     Before the detectives were able to handcuff Appellant, a crowd
     began to form around them making the situation more volatile.
     (See id. at 90).

(Trial Ct. Op., at 6-7) (some record citations and record citation formatting

provided).

     The foregoing facts establish that, with the intent of preventing a

lawful arrest, Appellant resisted police, requiring their use of substantial


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force to overcome his resistance. See Lyons, supra at 925; Miller, supra

at 146.    Hence, we conclude that the trial court properly found that the

evidence was sufficient to support Appellant’s conviction.         See Reese,

supra at *5. Appellant’s issue does not merit relief.3

       Judgment of sentence affirmed.




____________________________________________


3
    Neither are we legally persuaded by Appellant’s reliance on
Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981). (See
Appellant’s Brief, at 11-14). In Rainey, officers woke the defendant from a
drunken stupor, handcuffed him, and were escorting him to the police
vehicle when he attempted to flee. See Rainey, supra at 1148-49. To
thwart that attempt, the officer grabbed the defendant by the sleeve and he
“began to shake himself violently, to wiggle and squirm in an attempt to free
himself of the officer’s grasp.” Id. at 1149. This Court found that the
Commonwealth failed to establish that the defendant resisted arrest, and
that at most this was a minor scuffle, where the defendant merely
attempted to “shake off the policeman[] detaining [him,]” and he neither
“struck, nor struck out at the arresting officers; nor did he kick or push
them.” Id. at 1150. However, here, Appellant immediately was hostile to
police, assumed a fighting stance against the arresting officer, clenched his
fists, struggled violently against the arrest, and only was subdued minutes
later after other officers arrived to assist, all in what the detectives assessed
as a dangerous, volatile situation. These circumstances are distinguishable
from the minor scuffle presented in Rainey.              Moreover, Rainey only
considered the amount of force a defendant must expend for a resisting
arrest claim. It did not address the “substantial force” required by the police
to overcome the defendant’s resistance. Therefore, for all of these reasons,
Rainey is inapposite to the circumstances presented here and is not legally
persuasive.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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