J-S49032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ROBERT BRANDON

                           Appellant                  No. 1823 WDA 2016


            Appeal from the Judgment of Sentence August 24, 2016
                In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0000089-2016

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 14, 2017

        Appellant, Robert Brandon, appeals from the judgment of sentence

entered in the Beaver County Court of Common Pleas following his jury

conviction for resisting arrest.1 He argues that the evidence was insufficient

to support his conviction. We affirm.

        We glean the relevant facts from the certified record.   On the night of

December 20, 2015, Officer Stahl of the North Sewickley Police Department

responded to a domestic disturbance at Appellant’s house. Once he arrived

at the home, he encountered Appellant’s adult son, Jerrin Brandon, outside

the residence. Jerrin told Officer Stahl that he had gotten into an altercation

with Appellant and Appellant had punched him in the face.          Jerrin had a

bruise on his eye.         Officer Stahl proceeded into the residence and

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 5104.
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immediately encountered Appellant in the kitchen.        Officer Hanna, also of

the North Sewickley Police Department, arrived to assist within two minutes

after Officer Stahl’s arrival.

       Officer Stahl noticed that Appellant was very agitated.        Appellant

explained to the officers that he had ongoing problems with his son and that

he did not want to relinquish his grandson, who was then in Appellant’s

custody, to Jerrin.     Officer Stahl informed Appellant that he would be

receiving charges in the mail due to his role in the physical altercation with

Jerrin. Appellant then attempted to leave the residence to confront his son

by pushing past both officers but the officers stopped him.          Appellant

responded by slamming a chair into the kitchen table, but in so doing injured

Officer Stahl’s leg.   Officer Stahl decided to place Appellant under arrest.

Officer Stahl testified that he informed Appellant the he was under arrest

and moved toward him.            Appellant stepped back from Officer Stahl and

yanked his arm away when the officer grabbed it. Appellant stepped back

against the refrigerator and tried to hide his hands behind his back.        A

struggle ensued wherein Appellant flailed his arms.2

      Officer Stahl verbally warned Appellant to stop resisting and ordered

Appellant to give the officer his hands. However, Appellant continued to flail

2
   While this struggle was occurring, Officer Hanna was occupied in an
adjacent room with another of Appellant’s sons, Devin. Devin initially was
telling Appellant to cooperate, but then began yelling at Officer Stahl to get
off of Appellant. Officer Hanna prevented Devin from joining the melee
between Appellant and Officer Stahl.



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J-S49032-17


his arms and struck Officer Stahl in the face. Officer Stahl then forced

Appellant to the ground.      At that point, Officer Stahl and Appellant were

rolling on the ground with Appellant refusing to be handcuffed. According to

Officer Stahl, they struggled on the ground for about five minutes until

Appellant finally calmed down, sat in a chair, and was handcuffed. Appellant

was then transported to the police department.

        At trial, Appellant testified that he was not trying to prevent Officer

Stahl from making an arrest but instead was “attempting to turn away from

Officer Stahl to fall forward in order to avoid falling onto his back on which

numerous surgeries were performed.” Trial Ct. Op., 10/31/16, at 13. On

July 21, 2016, the jury found Appellant guilty of one count of resisting

arrest.3 On August 24, 2016, the trial court sentenced Appellant to ninety

days of probation. On September 6, 2016, Appellant filed a post-sentence

motion requesting, inter alia, an arrest of judgment.        After a hearing, the

trial court denied the motion, and this instant timely appeal ensued. 4

        Appellant raises a single issue for review:

           I. Did the [trial] court abuse its discretion in denying the
           motion for arrest in judgment insofar as the evidence was
           insufficient as a matter of law to sustain the conviction of
           resisting arrest where the Commonwealth failed to prove
           beyond a reasonable doubt that [Appellant] placed Officer

3
    The jury found Appellant not guilty of simple assault.
4
  Appellant submitted a court-ordered Pa.R.A.P. 1925(b) statement, and the
trial court issued an opinion adopting its October 31, 2016 memorandum
opinion and order denying Appellant’s motion for arrest of judgment.



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         Stahl at substantial risk of bodily injury, or that he
         employed a means of resistance justifying or requiring
         substantial force to overcome the resistance?

Appellant’s Brief at 5.

      Appellant argues that the evidence was insufficient to sustain his

conviction for resisting arrest where his conduct did not create a “substantial

risk of bodily injury” or require the use of “substantial force to overcome” his

resistance. Appellant’s Brief at 24. While he acknowledges that he did not

initially cooperate with Officer Stahl, he asserts that he did not intentionally

hit the officer and ultimately cooperated by being transported to the police

station without incident. Id. at 24, 33. No relief is due.

      When evaluating a challenge to the sufficiency of the evidence:

         [W]e view the evidence in the light most favorable to the
         Commonwealth together with all reasonable inferences
         from that evidence, and determine whether the trier of fact
         could have found that every element of the crimes charged
         was established beyond a reasonable doubt.

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)

(citations omitted).

      The Pennsylvania 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. § 5104.




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      Moreover, the crime of resisting arrest can be established without

evidence of “aggressive use of force such as striking or kicking of the

officer.”   Commonwealth v. McDonald, 17 A.3d 1282, 1285 (Pa. Super.

2011) (citation omitted). This Court has held that even passive resistance,

which requires officers to exert substantial force to overcome, is sufficient

evidence to sustain a conviction for resisting arrest.   Commonwealth v.

Thompson, 922 A.2d 926, 928 (Pa. Super. 2007).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Harry E.

Knafelc, we conclude the trial court’s opinion comprehensively discusses and

properly disposes of the issue presented. See Trial Ct. Op. at 11-16 (finding

that evidence of Appellant’s conduct was sufficient to sustain his conviction

for resisting arrest where he refused to remove his hands from behind his

back and then required Officer Stahl to exert substantial force in a prolonged

struggle on the ground to effectuate an arrest). Accordingly, we affirm on

the basis of the trial court’s opinion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2017




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