J-S87038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DAVID T. DONES

                            Dones                        No. 2106 MDA 2015


           Appeal from the Judgment of Sentence November 3, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000581-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 13, 2016

        David T. Dones appeals from his judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, after being convicted by a jury

of disorderly conduct (M-3),1 resisting arrest (M-3),2 and, by a trial judge, of

the summary offense of public drunkenness.3             After careful review, we

affirm.

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


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 5503(a)(4).
2
    18 Pa.C.S. § 5104.
3
    18 Pa.C.S. § 5505.
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     While on routine patrol at approximately 7:23 p.m. on October
     11, 2014, Harrisburg Police Officer Jeremy Crist observed David
     Dones on the southwest corner of Hummel Street and Kittatinny
     Street in the Allison Hill section of Harrisburg. The Allison Hill
     area of Harrisburg is considered by law enforcement to be a
     high-crime area. Officer Crist was wearing his police uniform
     and was driving a marked police vehicle. Officer Crist observed
     [Dones] holding what appeared to be a metal pipe in his left
     hand and a pistol in his right hand. When Officer Crist stopped
     his vehicle,    [Dones] appeared startled and began walking
     southbound on Hummel Street, away from Officer Crist. Officer
     Crist alerted other units of what he had observed and followed
     Dones in his patrol vehicle. [Dones] repeatedly looked back to
     observe Officer Crist, but did not run or attempt to dispose of
     the gun.      Officer Crist stopped his vehicle, activated his
     emergency lights, took a defensive position behind his vehicle’s
     engine block, and ordered [Dones] to drop the pistol. [Dones]
     dropped the pipe (later determined to be a broom handle) but
     did not drop the pistol. [Dones] began yelling at Officer Crist
     and moved the pistol out and away from his side and violently
     shook it in the air. Officer Crist was concerned that either he,
     [Dones] or other parties might be hurt if he could not de-
     escalate the situation. After Officer Crist delivered his third
     command for [Dones] to drop the pistol, [Dones] threw it into
     the yard of 310 Hummel Street, a home occupied by [Dones’]
     grandparents. The pistol was later determined to be a CO2-
     powered BB gun. Officer Crist removed the CO2 cartridge from
     the gun. The BB gun had the cosmetic features of a real gun.

     [Dones] then removed a fanny pack from around his waist and
     shook it while yelling at Officer Crist. Officer Crist gave several
     commands to drop the fanny pack, which [Dones] did. At this
     time, [Dones] jammed his hands into his front pants pockets and
     continued to yell and curse at Officer Crist. Officer Crist ordered
     [Dones] to remove his hands from his pockets and place his
     hands on top of his head. When [Dones] removed his hands
     from his pockets, Officer Crist came out from behind the cover of
     his patrol vehicle with his firearm trained on [Dones] in order to
     take [Dones] into custody. Before Officer Crist could reach
     [Dones], [Dones] jammed his hands back into his pockets while
     screaming and shaking violently. Officer Crist retreated back
     behind his patrol vehicle and again ordered [Dones] to remove
     his hands from his pockets. [Dones] removed his hands and
     Officer Crist again approached [Dones] with his service weapon


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      trained on [Dones]. Office Crist then holstered his weapon,
      placed [Dones] on the ground and handcuffed him. Officer Crist
      noticed that [Dones’] breath smelled of alcohol, [Dones’] eyes
      were bloodshot, and [Dones’] speech was slurred.

      Once Dones was handcuffed, Officer Crist attempted to ascertain
      Dones’ identity. Dones did not provide Officer Crist with his
      name. Officer Crist procured a California-issued identification
      card from Dones’ person which contained Dones’ name and date
      of birth. Officer Matthew Novchich arrived on the scene and
      transported Dones to the Dauphin County Booking Center.
      Officer Novchich also observed that Dones smelled of alcohol,
      was slurring his speech, and had glassy, bloodshot eyes. Dones’
      testimony established that Dones had consumed alcohol on the
      day of his encounter with Officer Crist.

Trial Court Opinion, 3/11/16, at 2-4 (citations to record omitted).

      On August 12, 2015, Dones was tried before a jury and convicted of all

charges.    On November 3, 2015, Dones was sentenced to an aggregate

sentence of 24 months of probation.         Dones filed a timely appeal on

December 1, 2015, raising the following issues for our review:

      (1)    Whether the evidence presented by the Commonwealth
             was insufficient to prove beyond a reasonable doubt that
             [Dones] committed the crime of disorderly conduct where:

           A) The Commonwealth failed to prove that [Dones] acted
              with the intent to cause public inconvenience,
              annoyance or alarm, or recklessly created a risk
              thereof, and

           B) The Commonwealth failed to prove that [Dones] created
              a hazardous or physically offensive condition by an act
              which serves no legitimate purpose.

      (2)    Whether the evidence at trial was insufficient to prove that
             [Dones] committed the crime of resisting arrest where the
             Commonwealth failed to prove beyond a reasonable doubt:

           A) That [Dones] created a substantial risk of bodily injury
              or resisted arrest by means justifying or requiring
              substantial force to overcome his resistance; and

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         B) That there was an underlying lawful arrest.

Appellant’s Brief, at 4.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes   charged     was   established   beyond   a   reasonable   doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

      In his first issue on appeal, Dones contends that there was insufficient

evidence to convict him of disorderly conduct where he did not cause public

inconvenience, annoyance or alarm, or recklessly create a risk thereof and

also did not create a hazardous or physically offensive condition by an act

which serves no legitimate purpose. We disagree.

      An on-duty Harrisburg police officer observed Dones at night in a high-

crime area carrying, what he believed to be, a metal pipe and a pistol.

When the officer stopped his vehicle, Dones appeared nervous, repeatedly

looked back at the officer, and began walking away from the officer.       The

officer activated his emergency lights, took a defensive position behind his

patrol car, and ordered Dones to drop the pistol. While Dones dropped the

item that appeared to be a metal pipe (it was actually a broom handle), he

did not drop the pistol. Dones began yelling at the officer and moving the

pistol violently in the air. After giving Dones a third command to drop the

pistol, Dones threw the pistol into the yard of a nearby residence. Dones


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then removed a fanny pack from around his waist and shook it frantically

while continuing to yell at the officer. Dones eventually dropped the fanny

pack at the officer’s command; however, he put his hands in his front pants

pockets and continued to yell and curse at the officer.          After several

unsuccessful attempts to arrest Dones, the officer finally holstered his

weapon, placed Dones on the ground and handcuffed him.

      Under these facts, we agree with the trial court that Dones’ judgment

of sentence for disorderly conduct should be affirmed on appeal where he

brandished what appeared to be a pipe and a pistol, waving it in the air, and

continued to yell at the officer after being told to drop the weapon. See 18

Pa.C.S. § 5503(a)(4) (“A person is guilty of disorderly conduct if, with intent

to cause public inconvenience, annoyance or alarm, or recklessly creating a

risk thereof, he creates a hazardous or physically offensive condition by any

act which serves     no   legitimate   purpose   of the   actor.”);   see also

Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. 2006).

      Dones next asserts that the evidence was insufficient to prove that he

committed the crime of resisting arrest, in particular claiming that he neither

“created a substantial risk of bodily injury [n]or resisted arrest by means

justifying or requiring substantial force to overcome his resistance” or that

there was an underlying lawful arrest. Dones’ Brief, at 8, 19.

      The Crimes Code defines resisting arrest 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

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      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. (emphasis added). In Commonwealth v. Lyons, 555

A.2d 920 (Pa. Super. 1989), our Court opined that resisting arrest “does not

require serious bodily injury[, n]or does it require actual injury to the

arresting officer.” Id. at 924. However, while section 5104 does not require

“the aggressive use of force such as striking or kicking of the officer,” it does

mandate that the forcible resistance used by the defendant involves some

substantial danger to the officer. Commonwealth v. Miller, 475 A.2d 145,

146 (Pa. Super. 1984).

      Instantly, the trial court concluded that standing on a street corner in

a high-crime area, waving a suspected firearm in a threatening manner,

ignoring multiple requests to drop the firearm, and repeatedly thrusting both

hands into pants pockets which forces an officer to retreat back to the cover

of his vehicle and drew his service weapon, created a substantial risk of

bodily injury to both the officer and any bystanders that may have been in

the area. We agree.

      Officer Crist was forced to retreat to the safety of his patrol vehicle

several times while attempting to effectuate the arrest due to Dones

repeatedly ignoring his commands to remove his hands from his pockets

while he screamed and shook violently. See N.T. Jury Trial, 8/12/15, at 21.

Officer Crist testified that Dones was acting agitated and animated as he

waved the pistol, later determined to be a loaded BB gun, and yelled at him.


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Id. at 19-20.    Moreover, Officer Crist testified that he feared Dones “was

going to pull another firearm [or] . . . knife out of his pants.” Id. at 22, 29.

Finally, the officer testified that the type of BB gun possessed by Dones,

which contained CO2 cartridges, could cause injuries if it were shot at an

individual. Id. at 28; see Commonwealth v Ramos, 920 A.2d 1253 (Pa.

Super. 2007) (carbon dioxide-powered BB gun considered deadly weapon

capable of producing death or serious bodily injury).

      Here, Dones’ actions prevented Officer Crist from effectuating a lawful

arrest and from discharging his duty of restoring order and maintaining the

peace. Moreover, Dones’ behavior caused Officer Crist to draw his gun. See

N.T. Jury Trial, 8/12/15 at 21.     Thus, we conclude that Dones created a

substantial risk of bodily injury to Officer Crist and anyone else in the vicinity

where Dones: exhibited erratic behavior while brandishing a loaded CO2 BB

gun; repeatedly placed his hands in his pants’ pockets against the officer’s

commands; and, waved a fanny pack in the air which the officer feared

contained a gun or a knife. Miller, supra.

      Finally, Dones contends that the Commonwealth failed to prove that

there was an underlying lawful arrest which would invalidate his resisting

arrest conviction.   See Commonwealth v. Jackson, 924 A.2d 618 (Pa.

2007) (lawful arrest is element of crime of resisting arrest).

      Instantly, Officer Crist was justified in briefly detaining Dones when he

first observed Dones walking down the street, in a high-crime area, carrying

what he believed to be a metal pipe and pistol. When the officer approached

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Dones, he appeared startled, began to walk in the opposite direction from

the officer, and repeatedly looked back over his shoulder at the patrol

vehicle. When Dones refused to drop the gun and began to violently wave it

in the air while yelling at the officer, Officer Crist had reasonable suspicion

that criminal activity may be afoot.   Commonwealth v. Stevenson, 744

A.2d 1261 (Pa. 2000) (reasonable suspicion determined by totality of

circumstances when officer observed unusual conduct which leads him to

reasonably conclude criminal activity may be afoot). When Dones continued

to thwart Officer Crist’s attempts to investigate the matter further by

screaming at the officer, jamming his hands into his pockets despite the

officer’s request to put his hands over his head, and waving a fanny pack

which the officer feared may contain another weapon, Officer Crist had

probable cause to arrest Dones for disorderly conduct.

      Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, we conclude that there was sufficient

evidence to prove resisting arrest. Randall, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016


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