J-S43024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RANDY L. TONER                             :
                                               :
                       Appellant               :   No. 1023 MDA 2018

        Appeal from the Judgment of Sentence Entered January 23, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005082-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 04, 2019

        Appellant, Randy L. Toner, appeals from the January 23, 2018 Judgment

of Sentence entered in the York County Court of Common Pleas following his

convictions of Disorderly Conduct and Resisting Arrest.1 He challenges the

sufficiency of evidence supporting his Resisting Arrest conviction. After careful

review, we affirm.

        We glean the following factual and procedural history from the certified

record. On the morning of July 25, 2017, Appellant was drinking alcohol,

listening to loud music, and walking around his front porch and the sidewalk

on the 600 block of East Middle Street. Around 2:00 PM, Appellant proceeded

to walk and dance into the street, attempting to touch cars with his beer can

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1   18 Pa.C.S. § 5503(a)(4) and 18 Pa.C.S. § 5104, respectively.

____________________________________
* Former Justice specially assigned to the Superior Court.
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and pouring beer over his own head. Appellant’s neighbors became concerned

for his safety and called the police.

      Police Officer Adam Knepp, in full uniform, arrived at the 600 block of

East Middle Street around 2:10 PM in a marked police cruiser in response to

a report of disorderly conduct. He noted that Appellant appeared intoxicated

in that he had slurred speech, bloodshot eyes, and was unsteady on his feet.

Officer Knepp made several attempts to have Appellant sit down and comply;

however, rather than comply, Appellant became agitated and walked away.

Officer Knepp moved towards Appellant to arrest him for disorderly conduct;

however, Appellant lifted both his hands to block Officer Knepp. Officer Knepp

then wrapped his arms around Appellant, and they stumbled onto Appellant’s

porch. Appellant then froze and asked Officer Knepp, “what are you going to

do now[?]” N.T. Trial, 1/23/18, at 27-28. Officer Knepp forced Appellant down

onto the lawn. However, Appellant’s arms remained under his body. Officer

Knepp requested Appellant to remove his arms from out of his body, and

warned Appellant he would tase him if he did not comply. Appellant did not

comply. Officer Knepp then tased Appellant and placed his arms in handcuffs.

Appellant continued to resist when placed in the police cruiser. Appellant was

charged with Disorderly Conduct, Public Drunkenness, and Resisting Arrest.

      A bench trial commenced on January 23, 2018, at which Appellant’s

neighbors and Officer Knepp testified. The Commonwealth submitted a




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neighbor’s cell phone video footage, as well as Officer Knepp’s body camera

footage.

        The court found Appellant guilty of Disorderly Conduct and Resisting

Arrest,2 and immediately sentenced him to an term of time-served to 23

months’ incarceration for the Resisting Arrest conviction, and a concurrent

term of 12 months’ probation for the Disorderly Conduct conviction.

         After the dismissal of his Post-Sentence Motion, Appellant timely

appealed. Appellant and the trial court complied with Pa.R.A.P. 1925.

        Appellant presents the following issue for our review:

        The Commonwealth presented evidence which was insufficient to
        demonstrate Appellant created a substantial risk to the officer or
        that the officer needed to use substantial force to overcome
        Appellant’s resistance. Appellant’s conduct amounted to minor
        scuffling which is insufficient for a conviction for resisting arrest.

Appellant’s Br. at 4.

         “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur

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

Commonwealth v. Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017). In

reviewing a sufficiency challenge, we determine “whether the evidence at trial,

and all reasonable inferences derived therefrom, when viewed in the light

most favorable to the Commonwealth as verdict winner, are sufficient to



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2   The court found Appellant not guilty of Public Drunkenness.

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establish   all   elements   of   the   offense   beyond   a   reasonable   doubt.”

Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation omitted).

“Further, a conviction may be sustained wholly on circumstantial evidence,

and the trier of fact—while passing on the credibility of the witnesses and the

weight of the evidence—is free to believe all, part, or none of the evidence.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In

conducting this review, the appellate court may not weigh the evidence and

substitute its judgment for the fact-finder.” Id.

      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 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.

      We have held that even passive resistance that requires the use of

substantial force to arrest a defendant is sufficient to sustain a conviction for

Resisting Arrest. See, e.g., Commonwealth v. McDonald, 17 A.3d 1282,

1286 (Pa. Super. 2011) (sustaining Resisting Arrest conviction where after the

defendant refused to comply with police officers when they attempted to

handcuff his hands behind his back, and police officers tased him after

threatening to taser him if he did not comply); Commonwealth v.

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

conviction where defendant refused officer’s requests to place her hands


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behind her back and interlocked her arms and legs with her husband, requiring

the use of pepper spray when attempts to pry them apart failed). “[M]inor

scuffling which occasionally takes place during an arrest” is not sufficient to

establish Resisting Arrest. 18 Pa.C.S. § 5104 cmt. See Commonwealth v.

Rainey, 426 A.2d 1148, 1150 (Pa. Super. 1981).

      Appellant avers that Appellant’s conduct was no more than “mere

scuffling.” Appellant’s Br. at 12 (citing Rainey, supra). He asserts that the

evidence is, therefore, insufficient to sustain his Resisting Arrest conviction.

Id. We disagree.

      Contrary to Appellant’s characterization, the interaction between

Appellant and Officer Knepp was not “a mere scuffle.” The record, including

the videotaped recordings, indicates that Appellant was acting in a disruptive

manner that caused concern for his safety and the safety of others. When

Officer Knepp attempted to arrest him, Appellant blocked him by lifting both

his hands. N.T. Trial, 1/23/18, at 26; Commonwealth’s Exh. 2. After a scuffle,

Officer Knepp brought Appellant to the ground to put handcuffs on him.

However, Appellant’s arms were under his tensed-up body. N.T. Trial,

1/23/18, at 27-28. Officer Knepp asked Appellant to remove his arms from

out of his body several times, and warned him he would tase him if he did not

comply. Id.; Commonwealth’s Exh. 2. Appellant refused to comply, and

Officer Knepp tased Appellant in order to bring Appellant’s arms out from




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beneath his body and place him in handcuffs. N.T. Trial, 1/23/18;

Commonwealth’s Exh. 2.

      Following our review of the record, including the videotaped recordings,

we conclude that, when viewed in the light most favorable to the

Commonwealth as verdict winner, the evidence was sufficient to establish that

Appellant’s resistance required Officer Knepp to use substantial force to

effectuate an arrest. See 18 Pa.C.S. § 5104. Accordingly, this claim warrants

no relief.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/04/2019




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