J-S51028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

ROBERT W. KORTMAN

                       Appellant                     No. 40 MDA 2014


        Appeal from the Judgment of Sentence December 5, 2013
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0001970-2013


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:

                                                      FILED MAY 14, 2015

     While I agree with the Majority that Kortman’s conviction on the

charges of harassment and disorderly conduct must be reversed, I believe

that viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, Kortman’s convictions of the charges of recklessly

endangering another person and resisting arrest should be affirmed.

Accordingly, I am compelled to concur in part and dissent in part to the

Majority Memorandum.

     The following evidence was produced at trial.

     On April 19, 2012, at approximately 6:30 p.m., Kortman was parked in

the West Reading Borough parking lot. Kortman was there pursuant to court

order – the parking lot was the place ordered by another judge in Berks
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County as the location where Kortman and his ex-girlfriend would exchange

physical custody of their child. Kortman had either arrived early or his ex-

girlfriend was late, as, by 6:30, he had been waiting in the parking lot for 30

– 45 minutes.

       West Reading Police Sergeant Keith Phillips had finished his shift and

was leaving for the day when he went into the parking lot.          N.T. Trial,

11/19-20/2013, at 58.1 He had noticed Kortman waiting in the parking lot

and went over to Kortman’s car to see why he was there.         Id. at 58-60.

Sergeant Phillips was not in uniform, but was wearing a polo shirt that had a

badge embroidered on it and which had the words “West Reading Police

Department” embroidered on the left sleeve. Id. at 59. Sergeant Phillips

identified himself as a police officer and asked Kortman to identify himself

and to tell him why he had been in the parking lot. 2 Id. at 61. Kortman

declined to answer Sergeant Phillips’ questions. Id.        In his testimony,

Sergeant Phillips acknowledged that Kortman was under no obligation to




____________________________________________


1
  The notes of testimony are contained in one volume, although the trial
took place over two days, November 19 and 20, 2013. Any citation to
testimony on or after page 127 was from November 20, 2013.
2
  Although Sergeant Phillips testified he thought Kortman’s activity was
suspicious, he never claimed to have had a reasonable suspicion of criminal
activity.




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respond, but the Sergeant called for uniformed police backup in order to

compel response.3 Id. at 61-62.

        While Sergeant Phillips confronted Kortman, Kortman called 9-1-1 to

report that a person claiming to be a police officer, but who would not

produce a badge, was harassing him.              See Transcript of 9-1-1 call.   The

9-1-1 operator told Kortman to obtain the person’s license plate number.


____________________________________________


3
    From the direct examination of Sergeant Phillips:

              Q: [A]t that point did Mr. Kortman believe you were a
              police officer?

              A: No, I don’t believe so.

              Q: So what happened?

              A: He refused to talk to me.

              Q: What did you do?

              A: I said, okay, I’ll get some people that you will talk to
              then. And I went back to my car, and I called for the guys
              who were on duty to come over and just find out who he
              was.

              Q: Why did you call for officers who were on duty to figure
              out who the individual was?

              A: Well, they’re gonna show up in a marked police car and
              uniform. So sometimes I guess that makes a difference to
              some people.      So I wanted to make sure that that
              happened.

N.T. Trial, 11/19/2013 at 62-63.




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Id.     Kortman attempted to take a cell phone picture of Sergeant Phillips’

pickup truck, but Sergeant Phillips backed up toward Kortman and then left

the scene. N.T. Trial, 11/20/2013, at 157.

        Almost immediately thereafter, Police Officer Marc Oxenford, in full

uniform and driving a marked police car, arrived at the parking lot. Id. at

131. No one other than Kortman was there. Id. at 129. Officer Oxenford

testified he was responding to a report of a fight in progress.4 Id. Officer

Oxenford attempted to talk with Kortman to find out why he had called 9-1-

1, however, Kortman did not respond because he was still on the phone with

9-1-1.      Id. at 130.        Officer Oxenford’s marked vehicle was parked

approximately four to five feet in front of Kortman’s BMW. Id. at 63, 119.

        Sergeant Phillips returned to the scene. It is unclear precisely where

he parked, but Kortman testified he might have been able to get around the

cars.    Id. at 161.    Police Officer Edward DeLozier, Jr., also in full uniform

and driving a marked vehicle, arrived in response to Sergeant Phillips’

request for backup. Id. at 103-104. When Officer DeLozier arrived, he saw

what appeared to be a public argument between Kortman and the other two

officers. Id. at 102.      A physical confrontation ensued in which the police

officers attempted to get Kortman out of his car and question him. See id.,
____________________________________________


4
   It is unclear who claimed there was a fight in progress. The 9-1-1
transcript of Kortman’s call contains no claim of a fight and there are no
indications of any other calls to the police.




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generally. At some point during the argument, Kortman started his car. As

the officers attempted to reach into Kortman’s car to turn it off, Kortman

attempted to put the car into gear.            Id. at 107.   The car lurched forward

approximately three feet, and then stalled.5 Id. at 107, 122-23.                The

movement of the car forced the officers to jump back out of the way to avoid

being hit or having their feet run over. Id. at 106-107. Officer Oxenford

testified that had Kortman been able to get the car fully engaged, “we would

have got run over.” Id. at 147.

        Specifically, Officer DeLozier testified as follows:

        A: What happened is I told him to get out of the car. He
        stepped back in the car. He motioned – I don’t know if it’s a key
        or push start, but I saw him go towards the steering wheel. I
        heard the engine start. That was after I told him to get out of
        the car. I told him to get out of the car again as I stepped in to
        try to turn off the key to the engine. As I stepped in with my
        right foot, the car went forward. I jumped back.           Officer
        Oxenford was right behind me, if you will, to my right. And as
        the car went forward, I jumped back. At that point, I told him
        he was under arrest, get out of the car.

        Q: And where is your body positioned at the precise moment Mr.
        Kortman’s car goes forward?

        A: I am stepping into his car. So my right foot is just inside of
        his car, and I’m moving towards the area where I think that the
        keys would be.

        Q: Where is your right hand?


____________________________________________


5
    Kortman’s car had a manual transmission.




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     A: It’s in front of the steering wheel or moving towards that
     direction. I don’t know how far my hand was. I know I didn’t
     make contact with the keys.

     Q: Where is your left hand?

     A: To the best of my knowledge, it would be on the – it would be
     [on] the front quarter panel of the driver’s door. So the driver’s
     door is open, and I’m stepping in. I’m left-handed, but I
     stepped in with my right foot and braced myself with my left arm
     and tried to reach in with the right arm to grab the keys.

     Q: And where is your head at this that point?       Is it inside or
     outside the car?

     A: It’s partially both, I would say. It’s hard to know the exact
     location. I know I stepped in. And once it moved, I jumped
     back. I jumped back right away.

     Q: How would you best describe the movement of that car?

     A: Abrupt, fast, and it scared me. As I stepped in and moved,
     the car went about 3 feet forward. And I jumped back out of
     maybe some reaction, but I can also say fear a little bit when
     that happened.

     Q: Why were you afraid?

     A: Because he refused to come out. And then when I told him to
     come out and he starts the car and I tell him to come out again
     and he refused to do so and I reach in to stop the – to turn the
     keys off and the car lurches forward, at that point I don’t know
     what Mr. Kortman’s capable of because he’s not listening to any
     of my commands and now the car’s moving forward.

N.T. Trial, 11/19/2013, at 105-107.

     At this point, the officers told Kortman he was under arrest.     Id. at

108. Officer DeLozier reached into the car to pull Kortman out, but Kortman

pulled back and broke free of his grip. Id.    Kortman reached back to the

steering column as if to try to start the car again. Id. at 109. Both officers


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reached in again, this time pulling Kortman largely out of the car. Kortman

put his foot on the ground and braced himself against the officer, who then

pulled Kortman to the ground and handcuffed him. Id. at 109-110.

       Other than admitting that he might have been able to move his car

around the police vehicles and leave the scene, Kortman denied all other

aspects of the Commonwealth’s case.              He claimed he fully complied with

Sergeant Phillips’ request to identify himself, giving the Sergeant his driver’s

license, registration and insurance card.6         Id. at 163.   He stated the car

never even lurched because he never turned the car on. Id. at 164. He did

not describe the amount of force needed to remove him from his car, but

claimed the officers used excessive force in subduing him. Id. at 166.

       Regarding reckless endangerment, based upon the above evidence,

the majority concludes “…the car lurched forward by stalling out.             This

occurs in a manual transmission vehicle when the vehicle is in gear and a

person removes his or her foot from the clutch too quickly without pressing

the gas pedal adequately.          Hence, the evidence establishes that the car




____________________________________________


6
  This testimony is contradicted by the 9-1-1 call placed by Kortman in which
he was adamant he had no idea who the person was who was accosting him.
Kortman did not explain why he would produce his driver’s license,
registration and insurance card to a stranger. Neither did he explain why,
having produced his identification, he would then call 9-1-1, reporting he
was being accosted by someone claiming to be a police officer.




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lurched forward and stalled because Appellant’s car was on and in gear and

his foot was no longer on the clutch.” Majority at 8.

       The jury clearly rejected Kortman’s testimony that the car never

moved because he never turned on the car. Accepting that Kortman started

his car and put it into gear, the Commonwealth was entitled to the

reasonable inference he meant to drive it. This inference is supportable by

the fact his car moved forward. However, having accepted the jury’s initial

determination, and acknowledging that the Commonwealth is entitled to all

reasonable inferences drawn from the facts,7 the majority improperly rejects

that reasonable inference by unilaterally determining that Kortman did not

attempt to drive his car.        Rather, the majority asserts the explanation for

the car moving is that Kortman removed his foot from the clutch, while the

car was in gear, allowing the car to stall and lurch forward.                This

interpretation of the evidence represents improper fact-finding by the

majority and is not warranted given our standard of review.                  See

Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(Appellate court may not weight the evidence and substitute its judgment for

the fact-finder’s.)




____________________________________________


7
 Majority at 8, citing Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.
Super. 2013).




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       The majority determines it was a virtual impossibility for any of the

police to be at risk for serious bodily injury because Kortman never

attempted to drive his car. Majority at 8-9. The jury was entitled to believe

the police officers’ testimony and give it whatever weight might be

appropriate. By convicting Kortman of REAP, the possibility of serious bodily

injury became, essentially, a finding of fact. Considering the testimony and

the reasonable inferences drawn therefrom, it cannot be said as a matter of

law, the officers were not at risk of suffering serious bodily injury.    By

disregarding the jury’s determination, the majority has substituted its

judgment for the fact-finders’ and has again engaged in improper fact-

finding. See Thompson, supra; Commonwealth v. Grant, 813 A.2d 726,

734 (Pa. 2002) (Appellate courts do not act as fact-finders, since to do so

would require an assessment of credibility of the testimony, and that is

clearly not the appellate court’s finction.)

       Having properly determined Kortman put his car in gear and

attempted to drive away while Office DeLozier was reaching inside, the jury

was allowed to conclude those actions were evidence of Kortman’s

recklessness. Accordingly, I find that viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, as we are required to do,

provides sufficient evidence to support Kortman’s conviction of REAP.8

____________________________________________


8
  The majority also comments on the likelihood that the encounter between
the police officers and Kortman constituted an unlawful investigative
(Footnote Continued Next Page)


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      I also find Kortman’s conviction of resisting arrest9 to be supported by

the evidence. Kortman specifically claims there was insufficient evidence to

show the police were required to use substantial force to overcome his

resistance.   I note that the statute does not criminalize all resistance to

arrest, rather, only such resistance that requires substantial force to

overcome.10 “Substantial”, however, is not defined by statute. Accordingly,

looking to the common understanding of the word,11 substantial is defined as

                       _______________________
(Footnote Continued)

detention. Majority at 10, n.2. I note that at the beginning of the
encounter, it is undisputed that Kortman called 9-1-1 and requested police
assistance. Whether the encounter was unlawful was never determined
because no motion to suppress was filed and the issue was never raised,
argued or briefed. We have no knowledge why this issue was unexplored.
While Kortman might be entitled to relief on such grounds, that would only
be appropriate after the issue had been thoroughly reviewed through a Post-
Conviction Relief Act petition.
9
  Resisting arrest is defined as:

      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.
10
  In general, a “minor scuffle” is insufficient to support a charge of resisting
arrest. Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa. Super.
1981).
11
   See 1 Pa.C.S. § 1903 (a), which states, in relevant part: “Words and
phrases shall be construed according to rules of grammar and according to
their common and approved usage.”




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ample or considerable.    See Random House Kernerman Webster’s College

Dictionary, 2010; American Heritage Dictionary of the English Language, 5th

Edition, 2010.

      Here, the evidence demonstrated that it took the efforts of two police

officers to pry Kortman from his car, take him to the ground, and handcuff

him. The trial court cites Officer DeLozier’s testimony on pages 108-110 to

support the jury’s determination. In addition to the information cited by the

trial court, Officer DeLozier also testified that Kortman attempted to restart

his car during this struggle, thereby adding additional danger to the

situation.   It must also be remembered that the police officers were

attempting to remove Kortman from the close confines of the front seat of

an automobile.     The testimony described multiple efforts of two police

officers, ultimately requiring Officer DeLozier to grab Kortman by the back of

his neck, forcefully pulling him from the car, and then requiring two officers

to force Kortman to the ground.

      There is no case law describing the efforts to arrest and control an

unwilling defendant in close quarters.          However, the force required to

overcome passive resistance can be considered substantial.         This Court’s

decision in Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super.

2007), is instructive.

      The only evidence cited in Thompson to support the use of

substantial force was the following:




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

Thompson, 922 A.2d at 928.12

       Thompson demonstrates that actively fighting a police officer is not

required to prove resisting arrest.            Accordingly, I believe the jury was

entitled to draw the same inferences for the necessity of the use of

substantial force herein.

       I suggest other cases decided by our Court support the instant verdict.

In Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997), where a

squirming and struggling woman who kicked a police officer in the shin,

required substantial force to overcome.              The Wertelet court opined,

“Examples of ‘means’ which would undoubtedly satisfy the Code by requiring

substantial force to overcome would be any kind of significant physical

resistance, including punching, shoving, squirming, biting or kicking.” Id. at

211 (emphasis added).



____________________________________________


12
   I do not believe that “exhausted” is a magic word, demonstrating the
necessity of the use of substantial force. Rather, I believe a jury is entitled
to look at the totality of the circumstances to draw reasonable conclusions
and inferences. In Thompson, the jury could well picture the situation and
infer the amount of force needed to pry apart the passive resistors.




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       In Commonwealth v. Franklin, 374 A.2d 1360, 1363 (Pa. Super.

1977), a panel of our Court concluded there “can be little doubt” that

evidence a woman used loud and abusive language and required three

officers to handcuff her, was sufficient to support resisting arrest.13        In

Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011), a defendant

twisted his shoulders such that his shoulders hit a police officer who was

trying to take the defendant’s hands from his pockets and arrest him. Such

action was sufficient to support resisting arrest.       In Commonwealth v.

Clark, 761 A.2d 190 (Pa. Super. 2000), a defendant fled police after being

pepper sprayed,14 but slipped and fell, whereupon a police officer rolled over

on the ground with the defendant. This constituted substantial force. Most

recently, Commonwealth v. McDonald, 17 A.3d 1282 (Pa. Super. 2011),

related circumstances almost identical to those found in Clark, including the
____________________________________________


13
   Regarding the use of substantial force, the specific evidence cited in
Franklin was as follows:

       Another struggle ensued between the officers and the appellant
       as they attempted to place handcuffs on her and take her out to
       the patrol car. The officers succeeded in getting one handcuff on
       the appellant, but were having difficulty securing the other one.
       Officer Kibler, who was one of the officers in the house at this
       time, testified that it took three police officers to finally get the
       handcuffs on the appellant.

Franklin, 922 A.2d at 1362.
14
  As stated by the Majority, flight alone does not constitute resisting arrest.
Commonwealth v. Miller, 475 A.2d 145 (Pa. Super. 1984).




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defendant’s flight, the defendant slipping and falling, and a tussle on the

ground.

      In the present case, the jury was properly charged as follows:

      A person cannot commit [resisting arrest] unless he or she
      creates a substantial risk of bodily injury or resists by means
      justifying or requiring substantial force to overcome his or her
      resistance. Thus, you cannot find the defendant guilty if you find
      that he merely scuffled with or argued with the police officer.

N.T. Trial, 11/20/2013, at 205.

      I believe the evidence presented instantly is comparable to the

evidence cited in the above cases. In light of the this legal precedent, and

applying our well established standard of review, I agree with the trial court

that the jury could conclude that the effort described in the testimony

represented more than a mere scuffle and constituted the use of substantial

force. Therefore, I must dissent from the Majority on this issue.

      As noted, although I respectfully dissent from the Majority’s decision

regarding the disposition of the charges on REAP and resisting arrest, I am

in full agreement with the Majority regarding the dismissal of the charges of

harassment and disorderly conduct.

      Accordingly, I concur in part and dissent in part.




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