J-A26007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KWANE CUFF,

                         Appellant                   No. 2160 MDA 2013


         Appeal from the Judgment of Sentence October 15, 2013
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0001389-2013


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 10, 2014

      Kwane Cuff appeals from the judgment of sentence of twelve months

probation imposed by the trial court after a jury found him guilty of resisting

arrest and disorderly conduct. After careful review, we reverse.

      Officer James Hawkins of the Harrisburg police was on routine patrol

with his canine partner at 3:30 a.m. on February 15, 2013, when he

received a call from another officer reporting approximately ten shots fired in

a high crime area with numerous drug-related shootings.          An additional

citizen reported hearing shots fired in the area. Officer Anthony Fiore heard

the same calls. Neither the citizen nor the officer who originally reported the

shots could give a description of the shooter or shooters because they did

not see the incident.    Both Officer Hawkins and Officer Fiore responded to

the general vicinity. When Officer Fiore arrived, he heard additional shots.
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Officer Hawkins observed a vehicle legally parked with its dome light on and

radioed Officer Fiore that he was going to check the vehicle to determine if it

was related to the call of shots fired. The two officers then traveled together

in their own vehicles toward the car.

        As Officer Hawkins approached, he saw Appellant standing outside of

the car and another individual in the passenger seat.           Officer Hawkins

activated his high beams and illuminated the vehicle with his spotlights. At

that point, he believed the person inside the car was an individual whom he

knew had been convicted of several firearms violations.1 The person inside

the car then exited and, according to Officer Hawkins, both men “started to

step away in the opposite direction where [he] was parked in front of their

vehicle.” N.T., 10/15/13, at 45. According to Officer Hawkins, “one or two”

steps were taken away from the officer’s direction. Id.

        Officer Hawkins exited his car with his canine and ordered the men not

to run and instructed them that they were not free to leave. Officer Fiore

alighted from his car with his weapon drawn and directed the men to move

to the front of their vehicle.         Officer Fiore detained the passenger who

originally was inside the car. The officer placed that man in handcuffs and

performed a pat-down search. Officer Fiore did not recover anything from



____________________________________________


1
    This initial belief proved to be incorrect.



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him. As Officer Fiore sat the person down, Appellant began to loudly swear

at Officer Hawkins and demand that he get the dog away from him.

      Officer Fiore asked Appellant to cease yelling. Appellant refused, and

Officer Fiore attempted to inform Appellant that he was going to frisk

Appellant for officer safety.   Appellant continued to scream at the officers

and as Officer Fiore tried to frisk him, Appellant “tensed up his upper body

and he pulled away from [Officer Fiore’s] grasp and then started to turn.”

Id. at 64. Officer Fiore took Appellant to the ground. There was a “brief

struggle” which “didn’t last very long at all” before Officer Fiore placed him

in handcuffs and under arrest. Id. at 65. Appellant continued his profanity-

laced tirade and threatened to sue the officers.        As a result, several

individuals exited a house, which was Appellant’s residence, and also

became involved in the verbal altercation. No contraband or weapons were

found on Appellant and police did not search the vehicle.

      The Commonwealth charged Appellant with disorderly conduct and

resisting arrest.   Appellant filed a pre-trial habeas corpus motion and a

motion to suppress.      The court denied those motions and the matter

proceeded to a jury trial.        The jury found Appellant guilty of the

aforementioned charges. The court sentenced Appellant to two concurrent

terms of twelve months probation.      This timely appeal ensued.   The court

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.      Appellant complied, and the trial court


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authored its opinion.   The matter is now ready for our review.       Appellant

presents four issues for this Court’s consideration.

      I.      Whether the trial court erred in instructing the jury to
             consider elements of the crime of disorderly conduct for
             which Appellant was not charged?

      II.    Whether the evidence presented by the Commonwealth
             was insufficient to prove beyond a reasonable doubt that
             Appellant committed the crime of disorderly conduct
             where:

                   A) the Commonwealth failed to prove that Appellant
                   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
                   Appellant created a hazardous or physically
                   offensive condition by an act which serves no
                   legitimate purpose?

      III.   Whether the evidence at trial was insufficient to prove that
             Appellant committed the crime of resisting arrest where
             the Commonwealth failed to prove beyond a reasonable
             doubt:

                   A)    that Appellant created a substantial risk of
                   bodily injury or resisted arrest by means justifying or
                   requiring substantial force to overcome his
                   resistance; and

                   B) that there was an underlying lawful arrest?

      IV.    Whether the trial court erred in denying Appellant’s
             [m]otion to [s]uppress where Appellant was illegally
             detained without probable cause or reasonable suspicion in
             violation of Article I, Section 8 of the Pennsylvania
             Constitution and the Fourth Amendment of the United
             States Constitution?

Appellant’s brief at 7-8.


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      At the outset, we address Appellant’s sufficiency of the evidence

arguments since a successful sufficiency challenge warrants discharge rather

than a new trial.   Commonwealth v. Torrito, 67 A.3d 29, 33 (Pa.Super.

2013) (en banc); Commonwealth v. Breighner, 684 A.2d 143 (Pa.Super.

1996) (en banc). Appellant’s initial sufficiency claim relates to his disorderly

conduct conviction. We view all of the evidence admitted, even improperly

admitted evidence, in conducting a sufficiency review. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.        This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.




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      The Commonwealth charged Appellant with disorderly conduct under

18 Pa.C.S. § 5503(a)(4). That provision provides,

      (a)    Offense defined.--A person is guilty of disorderly conduct
             if, with intent to cause public inconvenience, annoyance or
             alarm, or recklessly creating a risk thereof, he:

             (4) creates a hazardous or physically offensive condition
             by any act which serves no legitimate purpose of the actor.

18 Pa.C.S. § 5503(a)(4).     In addition, where the defendant acts with the

intent “to cause substantial harm or serious inconvenience, or if he persists

in disorderly conduct after reasonable warning or request to desist[,] the

offense is graded as a misdemeanor of the third degree.           18 Pa.C.S.

§ 5503(b).    Here, the Commonwealth charged Appellant with the third-

degree misdemeanor offense.       The statute also defines the term “public.”

Pursuant to 18 Pa.C.S. § 5503(c), “the word ‘public’ means affecting or likely

to affect persons in a place to which the public or a substantial group has

access; among the places included are highways, transport facilities,

schools, prisons, apartment houses, places of business or amusement, any

neighborhood, or any premises which are open to the public.”

      Appellant    acknowledges     that   the   Commonwealth’s      evidence

established that he cursed and threatened to sue police.        However, he

maintains that, “[t]here was no evidence that any members of the public

were around to witness the incident or that Appellant’s apparent yelling

created a public disturbance or inconvenience.” Appellant’s brief at 22-23.

Appellant continues that there were only four houses on the street, which

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was a dead-end street, and the members of his own family did not exit the

house until after police arrested him.

      Appellant also submits that the Commonwealth did not prove that his

actions created a hazardous or physically offensive condition.    Appellant

recognizes that the phrase “physically offensive condition” includes setting

off a stink bomb, strewing rotten garbage in public, shining blinding lights

into the eyes of the public, and invading the physical privacy of an

individual.   See Commonwealth v. Williams, 574 A.2d 1161 (Pa.Super.

1990). Nonetheless, he contends that his swearing at police, and arguing

about being handcuffed and searched did not create a physically offensive

condition.

      The Commonwealth rejoins that Appellant’s verbal tirade at 3:30 a.m.

in a residential area caused a public disturbance.   It argues further that

Appellant’s actions “put the officers in jeopardy by further charging an

already tense situation, raised awareness that police were in the area, and

brought more people out into a potentially harmful situation as the officers

were conducting an investigation of a gun being fired in the area.”

Commonwealth’s brief at 20.

      Viewing the evidence in a light most favorable to the Commonwealth,

we find that the Commonwealth established that Appellant intended to cause

public annoyance or alarm and recklessly created a risk of such annoyance

or alarm. At 3:30 a.m., Appellant, on a public street, repeatedly began to


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loudly swear and verbally abuse police despite repeated attempts to calm

him down.        It is a reasonable inference from the record that Appellant

intended to draw public attention to both himself and the police, thereby

causing public alarm by screaming profusely at the police during the early

morning hours of the day.           In doing so, Appellant’s actions created a

hazardous condition since the officers were investigating a report of multiple

shots fired.     Here, Appellant’s yelling may have alerted the culprits of the

shots fired to the presence of police, endangering both the police and the

community.        See Williams, supra at 1164 (“A ‘hazardous condition’ is a

condition that involves danger or risk.”).       Further, it prevented the police

from continuing their investigation into the shooting. Accordingly, we hold

that Appellant’s disorderly conduct sufficiency claim does not entitle him to

relief.

          Appellant also challenges the sufficiency of the evidence relative to his

resisting arrest conviction.       To be found guilty of resisting arrest, the

Commonwealth must prove that the individual, “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




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overcome the resistance.” 18 Pa.C.S. § 5104.2 Running away, arguing with,

or minor scuffling with police is insufficient. See Commonwealth v. Miller,

475 A.2d 145 (Pa.Super. 1984) (fleeing from police alone is not resisting

arrest, flight must expose officers to substantial danger); Comment to 18

Pa.C.S. § 5104        (“This section changes existing law somewhat by not




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2
   Under modern Pennsylvania law, one has no right to resist arrest, even if
the arrest is unlawful. See Commonwealth v. Biagini, 655 A.2d 492 (Pa.
1995); 18 Pa.C.S. § 505(b)(1)(i). This was a change in the common law
that dated to the early days of the American republic. See Andrew P.
Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting Individual
Freedom?, 46 Drake L.Rev. 383 (1997). The United States Supreme Court
in John Bad Elk v. U.S., 177 U.S. 529, 535, (1900), outlined that at
common law, “If the officer had no right to arrest, the other party might
resist the illegal attempt to arrest him, using no more force than was
absolutely necessary to repel the assault constituting the attempt to arrest.”
The United States Supreme Court also recognized in Wolf v. Colorado, 338
U.S. 25 (1949), overruled in part on other ground, Mapp v. Ohio, 367 U.S.
643 (1961), that “One may also without liability use force to resist an
unlawful search.”     Wolf, supra at 33 n.1 (citing Commonwealth v.
Martin, 105 Mass. 178 (1870); State v. Mann, 27 N.C. 45 (1844)); cf.
State v. Curtis, 2 N.C. 471 (1797) (“as the officer did not tell Curtis for
what he arrested him, and the warrant he had was not under seal, Curtis
who resisted, and beat him for making the arrest, was acquitted.”); Coyle v.
Hurtin, 10 John 85 (N.Y. 1813); State v. Worley, 33 N.C. 242, 243 (1850)
(“a seal is essential to every warrant, issued by a magistrate to arrest any
person upon a criminal charge. If there be no seal, the precept is void and
affords no protection to the officer attempting to execute it; and, if its
execution is resisted by the defendant, he is guilty of no offence against the
law, though, in doing so, the person of the officer be assaulted.”); State v.
Crocker, 1874 Del. LEXIS 16.




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extending to minor scuffling which occasionally takes place during an

arrest.”); Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super. 1981).3

       Appellant first asserts that he did not create a substantial risk of bodily

injury or resist by means justifying or requiring substantial force against

him. In this respect, he highlights that Officer Fiore testified that Appellant

tensed his upper body, pulled away from the officer, and started to turn

away from Officer Fiore.          Further, he points out that although a “brief

struggle” occurred on the ground, Officer Fiore handcuffed Appellant without

assistance.     Appellant maintains that this minor scuffle does not rise to

resisting arrest. In support, he relies on Rainey, supra.

       In Rainey, an inebriated Rainey believed he had entered his friend’s

apartment and used the bathroom therein. However, his friend had moved
____________________________________________


3
  We are cognizant that the jury was instructed that running away, arguing
with police, and minor scuffling with police is not resisting arrest. We add
that the resisting arrest statute is “derived from” the Model Penal Code.
Comment to 18 Pa.C.S. § 5104. The comment to the Model Penal Code
provision reads in relevant part,

       This provision covers a person who, for the purpose of
       preventing a lawful arrest, “creates a substantial risk of bodily
       injury” or “employs means justifying or requiring substantial
       force to overcome the resistance.” This language exempts from
       liability nonviolent refusal to submit to arrest and such minor
       acts of resistance as running from a policeman or trying to
       shake free of his grasp. The policy judgment underlying this
       curtailment of coverage is that authorizing criminal punishment
       for every trivial act of resistance would invite abusive
       prosecution.

Comment to Model Penal Code § 242.2 (emphasis added).



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and no longer resided at the apartment. Rainey then passed out on the floor

of the apartment.   The resident of the apartment above telephoned police

after hearing the toilet flush.   Police responded and awakened Rainey to

place him under arrest.   Rainey attempted to leave but was restrained by

the officer. A second officer then entered the apartment and placed Rainey

against a wall and frisked him. That officer then transported the appellant to

a police van.   Upon reaching the police vehicle, Rainey attempted to flee.

The officer grabbed the appellant and he “began to shake himself violently,

to wiggle and squirm in an attempt to free himself of the officer's grasp.”

Rainey, supra at 1149.

      A third officer arrived and struck Rainey in the head with a nightstick.

Rainey continued to struggle, and one officer began to choke Rainey in an

attempt to subdue him, but relented when Rainey could not breathe. The

original officer who responded, and who had been interviewing the person

who called police, returned to aid his fellow officers. The three officers were

then able to handcuff Rainey.       At trial, the testimony was that Rainey

“merely attempted to squirm, wiggle, twist and shake his way free of their

grasp.” Id. This Court found insufficient evidence to find Rainey guilty of

resisting arrest.

      In Appellant’s view, his actions were not as “violent or resistive as the

actions of the defendant in Rainey.” Appellant’s brief at 30. Appellant adds

that there was no proof of an underlying lawful arrest. He correctly notes


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that Officer Fiore testified that he did not inform Appellant that he was under

arrest and that the officer’s initial attempt at handcuffing Appellant was not

to place him under arrest, but was for purposes of a Terry frisk. According

to Appellant, he was only placed under arrest after he struggled with the

officer.   Since the officer was not putting Appellant under arrest for

disorderly conduct at the time he resisted, Appellant contends that his

resisting arrest conviction is improper. Lastly, with respect to his resisting

arrest charge, Appellant asserts that the officer did not have reasonable

suspicion to conduct a Terry frisk or probable cause for the initial detention.

Thus, the purpose for handcuffing him was not lawful and he could not be

convicted of resisting arrest.

      The Commonwealth counters, without discussion, that Rainey is

distinguishable.    It adds that Rainey “has little precedential value.”

Commonwealth’s brief at 21. According to the Commonwealth, this Court’s

decisions in Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super. 1989),

and Commonwealth v. Butler, 512 A.2d 667 (Pa.Super. 1986), support

the verdict.   In Lyons, deputy sheriffs attempted to arrest the defendant.

Lyons, in an attempt to elude capture, “ran into the middle of Lycoming

Creek and attempted to swim downstream with the current.” Lyons, supra

at 925.    The temperature of the creek was frigid and it “had a slippery

streambed and a swift current.” Id. Two deputy sheriffs pursued Lyons into

the creek. One deputy sheriff, “after three unsuccessful attempts, managed


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to get a grip of [Lyons] who was kicking and struggling to get away.” Id.

(italics in original).     Two officers then secured Lyons, but he “went limp,

pulled his feet underneath him, refused to walk, and became rigid.”               Id.

Thus, the sheriffs had to carry him.

      This Court opined that resisting arrest “does not require serious bodily

injury. Nor does it require actual injury to the arresting officer.”          Id. The

panel set forth that sufficient evidence of resisting arrest may exist where

“the arrestee's actions created a substantial risk of bodily injury to the

arresting officer.” Id. The Lyons Court held that Lyons’ “struggle with the

two deputies in the middle of a frigid stream with a rocky uneven bed was

sufficient to meet that requirement.” Id. It added that the resisting arrest

statute “includes the disjunctive phrase ‘or employs means justifying or

requiring    substantial    force   to   overcome   resistance.’   [Lyons’]    actions

unquestionably fall within the ambit of this portion of the statute. It took

four deputy sheriffs to finally subdue appellant. Substantial force was thus

required to overcome appellant's resistance to the arrest.”

      In Butler, the defendant snatched four gold chains from a woman’s

neck in broad daylight and knocked her to the ground. The victim’s friend,

who witnessed the robbery, screamed. A young man responded to the cry

and gave chase.          The victim and her friend then flagged down a police

officer.    The young male who chased Butler returned and informed the

officer that the assailant was hiding behind a wall one block away.               The


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officer went to that area, cornered Butler, and instructed him not to move.

Butler, however, punched the officer and attempted to flee. Several other

officers had to subdue the defendant.          The Butler Court reasoned that,

because “it took the assistance of other officers to subdue [Butler,]” and the

officer testified that he was punched, the Commonwealth presented

sufficient evidence of resisting arrest.

      We find that neither Lyons nor Butler is dispositive. In both cases,

the defendant exercised more force and resistance. Further, in Lyons, there

was no legitimate question as to the lawfulness of the arrest. Initially, we

agree with Appellant that the evidence against him does not establish that

he was being lawfully placed under arrest for disorderly conduct at the time

Officer Fiore brought him to the ground.           There is no testimony that

Appellant was being arrested for disorderly conduct when he began to resist.

Both Officer Fiore and Officer Hawkins testified that Appellant was subject to

an investigative detention and Appellant was not being arrested for

disorderly conduct.   However, a person may also be convicted of resisting

arrest if his or her conduct, with the intent of preventing an officer from

discharging a duty, creates a substantial risk of bodily injury or resists to

such a degree as to require substantial force to subdue the defendant.

      The question necessarily arises as to whether the officers were

discharging their duty in performing a Terry frisk and whether the statute

requires that the frisk be lawful in order to trigger the resisting arrest


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offense. We hold, consistent with the requirement of a lawful arrest, that an

officer must be lawfully discharging the duty in question, which may include

an investigative detention and Terry frisk. See Commonwealth v.

Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (where officer had

reasonable suspicion to conduct an investigative detention the defendant’s

actions of struggling with the officer and striking him using his left and right

shoulders    and    cursing    was    sufficient   evidence   of   resisting   arrest);

Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa.Super. 2006)

(sufficient evidence to convict of resisting arrest where police had reasonable

suspicion to detain individual exiting a convenience store and defendant

pushed an officer while carrying a handgun and then resisted apprehension

by violently struggling with an officer, mule-kicked the officer twice, and

attempted to retrieve his own weapon); Commonwealth v. Jackson, 907

A.2d 540, 546 (Pa.Super. 2006) (defendant kicked officer during lawful

investigative    detention);   Commonwealth v. Maxon,                798   A.2d    761

(Pa.Super.      2002)   (absence     of   reasonable   suspicion   for   investigative

detention rendered evidence insufficient for resisting arrest conviction).

      An investigative detention subjects an individual to a stop and short

period of detention.       Commonwealth v. Downey, 39 A.3d 401, 405

(Pa.Super. 2012). This seizure does not involve actions that are so coercive

as to comprise the equivalent of an arrest. Id. To conduct an investigative

detention, police must have reasonable suspicion of criminal activity.             Id.


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“[T]his standard is met ‘if the police officer's reasonable and articulable

belief that criminal activity was afoot is linked with his observation of

suspicious or irregular behavior on behalf of the particular defendant

stopped.’”       Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super.

1992). It is well-settled that “[m]ere presence near a high crime area or in

the vicinity of a recently reported crime, is not enough to warrant a Terry

stop.”     Id.    Rather, police “must observe irregular behavior before he

initiates a stop and, concurrently to his observation, he must hold a belief

that criminal activity is afoot.” Id. We determine what level of interaction

occurred under a totality of the circumstances test.         Commonwealth v.

Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).

         In the present case, police received a call of shots fired in a high crime

area at 3:30 a.m. No description of the individual or individuals who fired

the shots was provided.         Upon responding to the area, police observed

Appellant and another individual in a legally parked car with the dome light

on. When the police approached, the two men took a step or two away from

the car. This combination of facts is insufficient to support a reasonable and

articulable belief that Appellant and his companion were engaged in criminal

activity. Police did not observe irregular or suspicious behavior by Appellant.

Thus, the initial investigative detention was unlawful and cannot support the

resisting arrest charge. Cf. Maxon, supra.




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      Even assuming arguendo that the totality of the circumstances

warranted the initial detention for a Terry frisk, we find that Appellant did

not create a substantial risk of bodily injury or resist by means justifying or

requiring substantial force to subdue him. Instantly, Appellant stiffened his

upper body, and stepped and turned away from the officer. None of these

actions rises to the level of creating a substantial risk of bodily injury. See

Commonwealth v. Eberhardt, 450 A.2d 651 (Pa.Super. 1982). Further,

they did not require or justify substantial force to overcome them.         Of

course, Appellant also “briefly struggled” with Officer Fiore after the officer

took him to the ground. See N.T., 10/15/13, at 65. Probable cause for a

lawful arrest may arise after an initial unlawful arrest, or in this case, an

invalid investigatory detention. Cf. Commonwealth v. Jackson, 924 A.2d

618 (Pa. 2007).

      In Jackson, 924 A.2d 618, a police officer saw Jackson with a group

of men throwing dice on the street. Believing that the men were engaged in

illegal gambling, the officer approached.      Jackson fled, and the officer

pursued. The officer caught Jackson, but Jackson punched him in the face

and chest several times and eluded capture. However, the officer again was

able to catch Jackson. Jackson kneed the officer in the groin, causing the

officer to go to the ground. Jackson then attempted to wrestle the officer’s

gun away from him.     The officer, nonetheless, succeeded in overpowering

Jackson and placed him under arrest.


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      On appeal to this Court, Jackson challenged his resisting arrest

conviction and a charge not relevant hereto.              This Court reversed his

resisting arrest conviction on the ground that there was no lawful arrest.

Our Supreme Court granted allowance of appeal to determine whether “a

defendant's assault on a police officer [which] occurs as the result of the

officer's attempt to unlawfully arrest him, . . . may give rise to a lawful

arrest, the resistance of which will support a charge of resisting arrest under

18 Pa.C.S. § 5104.”          Id. at 619–620.      The High Court ruled that once

Jackson first attacked the officer, the officer had probable cause to arrest

him for aggravated assault and that Jackson’s continued fighting constituted

resisting arrest.    The Supreme Court’s Jackson decision is distinguishable

since it involved more violent actions and comprised a scenario where the

defendant resisted the officer’s attempts to arrest him during multiple

encounters.         Simply   put,   in   Jackson,   924   A.2d   618,   there   was

unquestionably probable cause to arrest the defendant for aggravated

assault after the original significant scuffle, and the defendant continued to

violently resist.

      While we agree that Officer Fiore was justified in using the amount of

force he did, the facts viewed in a light most favorable to the Commonwealth

establish only that a minor scuffle with Officer Fiore occurred. See Rainey,

supra.    This case is wholly dissimilar from the cases relied on by the

Commonwealth, Lyons and Butler.


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     We recognize that the resisting arrest statute “does not require the

aggressive use of force such as striking or kicking of the officer.”   Miller,

supra at 146; Commonwealth v. McDonald, 17 A.3d                 1282, 1285

(Pa.Super. 2011) (quoting Miller, supra). However, it does mandate that

the forcible resistance used by the defendant involve some substantial

danger to the officer.   Miller, supra at 146.    In this case, there is no

testimony that Appellant punched, struck, kicked, spit upon, shoved, used

his shoulders to strike, or used an amount of force justifying or requiring

substantial force to place him in handcuffs. Compare Commonwealth v.

Franklin, 69 A.3d 719 (Pa.Super. 2013) (defendant’s swinging of his fists at

police and continually yanking his arms away from officer constituted violent

and tumultuous behavior); McDonald, supra (resistance by defendant

required deployment of taser); Commonwealth v. Thompson, 922 A.2d

926 (Pa.Super. 2007) (couples’ interlocking of arms and legs on the ground

to prevent handcuffing required substantial force to pull them apart leaving

officer exhausted); Stevenson, supra at 775 (defendant pushed officer,

violently struggled with the officer, and mule-kicked him twice); Jackson,

907 A.2d at 546 (defendant kicked officer); Lyons, supra (defendant kicked

and struggled in freezing cold creek with deputy sheriffs requiring two

sheriffs to subdue him); Commonwealth v. Guerrisi, 443 A.2d 818

(Pa.Super. 1982) (defendant struck officer in the groin); Miller, supra at

147 (defendant was “attacking police[,]” flailed his arms and upper part of


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his body in a rapid fashion, “push[ed] through” an officer, strained and

struggled against the police and bruised an officer’s leg).     In short, we

conclude that Appellant’s actions did not justify or require substantial force

to overcome his limited resistance.     Accordingly, the Commonwealth failed

to prove that Appellant statutorily resisted arrest, and he is entitled to

discharge on that count.

      Having addressed Appellant’s sufficiency claims, we now examine his

first issue. Appellant contends, and we agree, that the trial court erred in

instructing the jury as to elements of disorderly conduct for which Appellant

was not charged.     In the present case, the Commonwealth only charged

Appellant under 18 Pa.C.S. § 5503(a)(4). Nevertheless, the court issued a

standard jury instruction that included elements of disorderly conduct with

which Appellant was not charged.

      Specifically, the trial court instructed the jury that it could find

Appellant guilty of disorderly conduct if it found that:

             The defendant committed one of the following acts: That
      he either engaged in fighting or threatening or in violent or
      tumultuous behavior. Such conduct included actions and words
      that are directed at producing or inciting imminent lawless
      action, or an immediate violent response given the
      circumstances under which it occurred, or that the defendant
      made unreasonable noise.

            You must consider the circumstances in which the
      Defendant is alleged to have made the noise in question to
      determine if it was outside conventional standards of organized
      society.




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           Then secondly, ladies and gentlemen, that the defendant
     did so, did one of those actions, with the intent to cause public
     inconvenience, annoyance or alarm, or by his actions recklessly
     created a risk of public inconvenience, annoyance or alarm, and
     that he persisted in such disorderly conduct after reason warning
     or request to desist.

           The word public, as I have used it, means affecting or
     likely to affect persons in a place in which the public or
     substantial group has access.

N.T., 10/15/13, at 98-99.      Critically, Appellant was not charged with

disorderly conduct under the sections related to engaging in fighting or

threatening or violent or tumultuous behavior.    See Criminal Information,

Second Count, 6/13/13 (Appellant “did, with the intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof,

create a hazardous or physically offensive condition by any act which serves

no legitimate purpose of the defendant. The defendant acted with the intent

to cause substantial harm or serious inconvenience or did persist in his

conduct after reasonable warning or request to desist.”); see also 18

Pa.Crim.P. 5503(a)(1).     Moreover, the Commonwealth did not charge

Appellant with violating the provision of the disorderly conduct statute

relative to noise.   See 18 Pa.C.S. § 5503(a)(2).      Rather, the criminal

information in this matter pertained only to the aspect of the disorderly

conduct statute relative to creating a hazardous or physically offensive

condition. 18 Pa.C.S. § 5503(a)(4).

     The Commonwealth’s argument that the court issued a standard jury

instruction is a non-sequitur. A court may issue a standard jury instruction,

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but if it instructs a jury on crimes or elements not charged, it is error unless

the crime for which the defendant is convicted is a lesser-included offense.

Cf. Commonwealth v. Gouse, 429 A.2d 1129 (Pa.Super. 1981); compare

also Commonwealth v. Shamsud-Din, 995 A.2d 1224 (Pa.Super. 2010).

Here, we do not find that the disorderly conduct provision in question is a

lesser-included offense of the other disorderly conduct charges since the

elements of the differing disorderly conduct provisions are distinct.       Cf.

Commonwealth v. Brandon, 79 A.3d 1192 (Pa.Super. 2013). The court’s

instruction was legal error.   Accordingly, we reverse Appellant’s disorderly

conduct conviction.

      Since we have found that insufficient evidence was introduced to

establish resisting arrest, and that a new trial is necessary as to the

disorderly conduct count, we need not reach Appellant’s final issue.        We

observe only that Appellant’s final challenge is to a suppression ruling, and

because there was nothing found on his person or in his car, there was

nothing to suppress. While in the early days of the American republic one

could be successfully discharged based on an illegal arrest via a habeas

corpus motion, see Commonwealth v. Alexander, 6 Binn. 176 (Pa. 1813),

one cannot suppress an illegal detention.           See Commonwealth v.

Standen, 675 A.2d 1273, 1276 (Pa.Super. 1996) (“A person is not a

suppressible fruit and any illegality of detention cannot deprive the




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government of the opportunity to prove guilt through the introduction of

evidence wholly untainted by the police misconduct.”).

      Judgment of sentence reversed.        Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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