J-S36008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                   :        PENNSYLVANIA
                                                   :
                v.                                 :
                                                   :
                                                   :
    KEVIN A. ARMSTRONG                             :
                                                   :
                       Appellant                   :   No. 398 WDA 2020

       Appeal from the Judgment of Sentence Entered February 27, 2020
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000159-2019


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.:                                   FILED AUGUST 19, 2020

        Appellant, Kevin A. Armstrong, appeals from the judgment of sentence

entered on February 27, 2020, following his jury trial conviction for resisting

arrest, 18 Pa.C.S.A. § 5104. We affirm.

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

        Patrolman Terry Fuqua was on routine patrol in a fully marked
        Bradford City Police patrol vehicle on March 15, 2018. He drove
        past [Appellant] while [Appellant] was walking on a public street.
        Patrolman Fuqua recognized [Appellant] and he knew that there
        was an existing warrant for his arrest. [Appellant appeared] to
        observe the patrol vehicle. Patrolman Fuqua turned his vehicle
        around and went back towards [Appellant]. [Appellant] began
        walking faster.

                               *               *          *

        Officer Fuqua got out of his patrol vehicle after he turned around.
        He yelled at [Appellant], telling him to stop and that there was a
        warrant for his arrest. [Appellant] left the road and ran through
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*   Retired Senior Judge assigned to the Superior Court.
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      the yards of several private residences. [Appellant] continued to
      run, continuing to go through yards and crossing streets [along a]
      hillside. He ran downhill for a substantial distance.

      [] Tuna Creek runs through a portion of Bradford. [Appellant ran
      towards Tuna Creek as] Officer Fuqua continued to pursue him.
      [Using his radio, Officer Fuqua reported that Appellant] was
      running from him towards the Tuna Creek. Sergeant Todd
      Erickson responded to the call and went to a location along [] Tuna
      Creek[, which is] surrounded by an area of overgrown vegetation.
      The area adjacent to the creek is steep[, overgrown, and
      extremely difficult to navigate]. Some of the vegetation[,
      including] small entangled trees, extend from the bank over the
      edge of the Tuna Creek. lt was spring time and [] Tuna Creek,
      which is expansive, was flowing rapidly. Since it was March in
      McKean County the water was very cold.

      Officer Fuqua continued to advise [Appellant] to stop. [Appellant]
      did not stop. At one point [Appellant] went into [] Tuna Creek.
      Officer Fuqua, attempting to pursue [Appellant] and go around the
      vegetation along the creek, fell into the [water]. Sergeant
      Erickson viewed [Appellant] coming toward his location and also
      advised [Appellant] to stop. [Appellant] turned and went back
      towards Patrolman Fuqua. [W]hen he realized Patrolman Fuqua
      was behind him, [Appellant] turned back towards Sergeant
      Erickson. [Appellant] then stopped and was apprehended by []
      Patrolman Fuqua. The officers had to take [Appellant] up a steep
      embankment, through vegetation and then a private yard, to get
      him to a public street and a patrol vehicle.

Trial Court Opinion, 3/26/2020, at 2-3.

      A one-day jury trial commenced on January 27, 2020.                   The

Commonwealth presented the testimony of both arresting officers and video

footage from Officer Fuqua’s police body camera. After hearing the evidence,

the jury convicted Appellant of resisting arrest.   On February 27, 2020, the

trial court sentenced Appellant to 90 to 180 days of imprisonment with a




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consecutive term of 18 months of probation.         The trial court also credited

Appellant 60 days for time-served. This timely appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

       Whether the [trial court erred in accepting the jury’s] verdict of
       guilt[] for [r]esisting [a]rrest, a misdemeanor of the second
       degree.

          a. Specifically, whether the trial testimony and other
          evidence introduced by the Commonwealth at the time of
          trial was insufficient to establish that [] Appellant[]
          employed means justifying or requiring substantial force to
          overcome his resistance.

          b. Additionally, whether the trial testimony and other
          evidence introduced by the Commonwealth at the time of
          trial was insufficient to establish that [] Appellant[] created
          a substantial risk of bodily injury to Sergeant Erickson and
          Officer Fuqua.

Appellant’s Brief at 5.

       Appellant contends that the Commonwealth failed to present sufficient

evidence to support his conviction for resisting arrest because the facts of the

case show he “merely fled from Patrolman Fuqua and Sergeant Erickson,

which neither created a substantial risk of bodily injury to the arresting officers

nor required substantial force to overcome his resistance.”            Id. at 14.

Appellant claims his “flight was only an attempt to escape arrest and not an

aggressive assertion of physical force against the officers in pursuit.”       Id.

Moreover, Appellant assails the trial court’s reliance on this Court’s decision in
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1  Appellant filed a notice of appeal on March 13, 2020. On March 16, 2020,
the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
March 26, 2020.

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Commonwealth v. Lyons, 555 A.2d 920 (Pa. Super. 1989), another case

dealing with the pursuit and arrest of a suspect in or near a creek, to conclude

there was sufficient evidence that Appellant’s flight posed a substantial risk of

bodily injury to the officers. Id. at 17-19. More specifically, Appellant asserts:

      [T]he facts of this case are distinguishable from those in Lyons.
      Although [Appellant] and Patrolman Fuqua had both slipped into
      the edge of Tuna Creek during the foot chase, they were both only
      in the water momentarily and did not stray further than the bank.
      Most notably, no struggle[] ensued within the waters between
      [Appellant] and the officers, which was a significant factor in this
      Court's opinion from Lyons. Furthermore, according to the
      testimony of both Patrolman Fuqua and Sergeant Erickson,
      [Appellant] eventually stopped running from the officers, and
      Patrolman Fuqua tackled [Appellant] to the ground. Both officers
      testified that [Appellant] did not struggle when they made physical
      contact with him, and both Sergeant Erickson and Patrolman
      Fuqua testified that [Appellant] was cooperative after he was
      apprehended. [Appellant] exclaimed "I'm already down," and
      made no aggressive assertions of physical force against the
      officers which would have placed them in substantial risk of bodily
      injury.

      The record presented at trial only establishes that [Appellant’s]
      actions when he ran from Patrolman Fuqua and Sergeant Erickson
      were "only attempts to escape and not an aggressive assertion of
      physical force" against the officers. Therefore, the Commonwealth
      failed to present sufficient evidence that [Appellant’s] flight posed
      a substantial risk of bodily injury to support a conviction of
      [r]esisting [a]rrest under 18 Pa.C.S.[A.] § 5104.

Id. at 18-19.    Moreover, Appellant argues that “[j]ust because Patrolman

Fuqua chose to tackle [Appellant] to the ground, [after he was compliant and

stopped running,] does not mean that force had to be used or was necessary

to conduct the arrest.”     Id. at 23.      As such, Appellant contends, “the




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Commonwealth also failed to present sufficient evidence that [Appellant’s]

flight justified or required substantial force to overcome his resistance[.]” Id.

      Initially, we note that in its Rule 1925(a) opinion, the trial court

determined that Appellant waived his sufficiency of the evidence claim, but

then conducted an alternative merits based analysis of the claim.        As this

Court has consistently held:

      If [an a]ppellant wants to preserve a claim that the evidence was
      insufficient, then the 1925(b) statement needs to specify the
      element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      [Where a] 1925(b) statement [ ] does not specify the allegedly
      unproven elements[,] ... the sufficiency issue is waived [on
      appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(citation omitted). “Such specificity is of particular importance in cases where

[…] the appellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009)

(citation omitted). Here, the trial court stated:

      [Appellant] does identify the elements that he asserts are lacking:
      lack of substantial force and lack of substantial risk of bodily
      injury. However, he fails to provide any specifics regarding the
      facts in this case and how they are lacking. Therefore, the court
      has to guess what it is [Appellant] will assert. Therefore, the
      [Appellant’s Rule 1925(b) c]oncise [s]tatement is so vague the
      issues raised in it should be considered waived.

Trial Court Opinion, 3/26/2020, at 1-2.




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      We disagree.    An appellant need only specify the element(s) of the

crime(s) upon which the evidence was insufficient under Rule 1925(b). There

is no additional requirement that an appellant set forth the facts of the case

to prove a lack of sufficiency.    Instead, once an appellant identifies the

challenged crime(s) and specific element(s), the court then analyzes the

element(s) of the specified crime(s) in relation to the facts presented at trial

to determine sufficiency.   Furthermore, here, there was only one crime at

issue, so it is abundantly clear which crime was the target of Appellant’s

challenge.   This is simply not a general, boilerplate sufficiency challenge

involving multiple crimes with multiple elements.      As such, for all of the

foregoing reasons, we reject the trial court’s conclusion Appellant waived the

issue, deem Appellant’s sufficiency challenge properly preserved for our

review, and proceed to examine the merits.

      We adhere to the following standards:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder's. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant's guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be

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     considered. Finally, the finder 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. Beatty, 227 A.3d 1277, 1283 (Pa. Super. 2020) (citation

omitted).

     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.

     This Court has previously determined:

     The intent of [S]ection [5104] is to confine the offense to forcible
     resistance that involves some substantial danger to the person.
     As a general rule, therefore, it is not criminal merely to flee arrest.
     However, where the circumstances of the flight expose the
     pursuing officers to substantial danger a [finding of a violation of]
     resisting arrest is proper. 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) (citations,

quotations, and original emphasis omitted).

     In Lyons, a prior panel of this Court determined:

     When the local deputy sheriffs arrived to arrest [Lyons], he ran
     into the middle of Lycoming Creek and attempted to swim
     downstream with the current. The water level of the creek was
     waist deep and, because it was early spring, the water
     temperature was frigid. The creek had a slippery streambed and
     a swift current. Two of the deputy sheriffs went into the creek
     after [Lyons]. One officer, after three unsuccessful attempts,
     managed to get a grip of [Lyons] who was kicking and struggling
     to get away. When the other officer then managed to grab

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      [Lyons’] arm, [Lyons] went limp, pulled his feet underneath him,
      refused to walk, and became rigid. As a result, the two officers
      literally had to carry him to the bank, losing their balance a few
      times along the way. The two officers asked [Lyons] to walk, but
      he refused. When they were within four to five feet of the bank,
      the two officers who were waiting on the shore, jumped in and
      together the four officers carried [Lyons] up to the bank where
      [Lyons] was then handcuffed.

      [Lyons] argue[d] that there was no evidence presented that he,
      at any time, assaulted or attempted to assault the officers or that
      he had a weapon. [Lyons] claim[ed] that he was simply fleeing
      from arrest and that no evidence was introduced which
      demonstrated that he created a substantial risk of bodily injury to
      the deputy sheriffs. [This Court determined his] arguable claim
      [was] inapposite.

      [We noted that Section 5104] does not require serious bodily
      injury. Nor does it require actual injury to the arresting officer.
      Rather, sufficient resistance is established if the arrestee's actions
      created a substantial risk of bodily injury to the arresting officer.
      [Lyons’] struggle with the two deputies in the middle of a frigid
      stream with a rocky uneven bed was sufficient to meet that
      requirement.

      Moreover, the statute includes the disjunctive phrase “or employs
      means justifying or requiring substantial force to overcome
      resistance.” [Lyons’] actions unquestionably [fell] within the
      ambit of this portion of the statute. It took four deputy sheriffs to
      finally subdue [Lyons]. Substantial force was thus required to
      overcome [Lyons’] resistance to the arrest.

Commonwealth v. Lyons, 555 A.2d 920, 925 (Pa. Super. 1989) (internal

citation and original emphasis omitted).

      In a later decision, this Court clarified Lyons, noting that “under the

rather extreme circumstances of that case, [Lyon’s] flight [created] a

substantial risk that, considering the omnipresent danger presented by a

creek's uneven, slippery bottom and rapid current, one or more of the officers

needed to capture [Lyons] could have incurred bodily injury as a result of


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being led into the freezing waters.”      In Interest of Woodford, 616 A.2d

641, 644 (Pa. Super. 1992). In Woodford, a juvenile attempted to steal an

off-duty police officer's personal vehicle. From an upstairs window, the officer

witnessed the juvenile leaving the area where his parked car was located. The

officer hurriedly dressed in regular clothing and attempted to arrest the

juvenile himself, despite the presence of an on-duty police officer.        The

off-duty officer approached the juvenile at the juvenile's residence and a

struggle ensued. This Court determined that there was insufficient evidence

to adjudicate the juvenile delinquent of resisting arrest. Notably, in

distinguishing Lyons, this Court opined, “[the off-duty officer] was not

deliberately led into an inherently dangerous situation by [the

juvenile], but rather, created a dangerous situation for himself when he chose

to vent his personal anger by attacking [the juvenile] in the presence of a

group of [the juvenile's] friends and relatives.” Id. (emphasis added).

      Taken together, Miller, Lyons, and Woodford reveal that mere flight—

by itself—will not generally constitute resisting arrest under Section 5104.

However, those decisions also hold that flight may constitute resisting arrest

where a suspect's selected path of evasion includes inherently dangerous

conditions that the suspect knows or should know pose a substantial risk of

injury to the pursuing officer. As discussed below, these factors are clearly

present in this case.

      Here, the trial court determined:


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      There are some distinctions between the facts in Lyons and the
      facts in the current case. ln Lyons[,] the defendant actually went
      into the river and the police had to go into the river and forcefully
      get him out of it. Here, [Appellant] fell into the river and then got
      out. Patrolman Fuqua went into the river - but not to get
      [Appellant] out of it. He fell into the river while pursuing
      [Appellant]. Nonetheless, the [overall] pattern of action here[,
      including Appellant’s chosen path of flight, placed] Officer Fuqua
      and Sergeant Erickson at risk of injury.

      [Appellant] fled for a substantial distance. His actions forced the
      officers to have to navigate the overgrown areas surrounding []
      Tuna Creek. This caused Officer Fuqua to fall into the flowing and
      cold spring waters. Then[,] the officers had to get [Appellant]
      back through the overgrown and steep bank of the creek to a
      patrol vehicle. The jury found that [Appellant’s] actions created a
      sufficient level of risk to the officers to support a conviction.
      […C]onsider[ing] the evidence here in the light most favorable to
      the Commonwealth as the verdict winner[,] the jury's findings and
      verdict should stand.

Trial Court Opinion, 3/26/2020, at 4-5.

      Based upon our standard of review, we agree that there was sufficient

evidence to support Appellant’s conviction for resisting arrest. Here, Appellant

led police into an inherently dangerous situation that posed a substantial risk

of injury to the pursuing officers. Appellant led a chase through backyards,

down steep and uneven terrain, around downed trees and branches, and near

a cold, rapidly flowing stream. Moreover, the record shows that both Appellant

and the pursuing police officer lost their footing and fell into the creek. Such

evidence directly demonstrated the inherently dangerous conditions of

Appellant’s chosen path of evasion and the evidence was not so weak and

inconclusive that, as a matter of law, no probability of fact could be drawn

from the proven circumstances.        Moreover, no actual injury or physical


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struggle with police was necessary. Finally, we note that the jury viewed the

police body camera footage at trial. The jury was free to free to believe all,

part or none of the evidence and we may not reweigh the evidence or

substitute our judgment for the jury’s decision. Accordingly, we conclude that

the Commonwealth sufficiently established Appellant’s actions created a

substantial risk of bodily injury to the arresting officer.2 Thus, we agree with

the trial court’s assessment that there was sufficient evidence to support

Appellant’s conviction for resisting arrest.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




____________________________________________


2  “When a criminal statute criminalizes two separate actions or intents, the
Commonwealth need only prove one.” Commonwealth v. Gerulis, 616 A.2d
686, 693 (Pa. Super. 1992). Having determined there was sufficient evidence
of substantial risk of bodily injury to police, we need not determine whether
the police required substantial force to overcome Appellant’s resistance. See
Lyons, 555 A.2d at 925 (Section 5104 “includes the disjunctive phrase ‘or
employs means justifying or requiring substantial force to overcome
resistance.’”) (emphasis added).

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