J-S78030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAYSON MIKE EMERSON

                            Appellant                No. 630 MDA 2014


          Appeal from the Judgment of Sentence November 25, 2013
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004190-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 24, 2014

        Jayson Emerson files this direct appeal from his judgment of sentence

for aggravated assault against a police officer1 and resisting arrest2.   The

lone argument raised in this appeal is: “Whether the trial court erred in

denying [Emerson’s] Post-Sentence Motion where the jury's verdict of guilty

on both counts was against the weight of the evidence so as to shock one's

sense of justice where the Commonwealth failed to prove that [Emerson]

committed the crimes charged?” Brief for Appellant, p. 4. We affirm.

        The trial court accurately recounted the evidence adduced during trial

as follows:


____________________________________________


1
    18 Pa.C.S. § 2702(a)(3).
2
    18 Pa.C.S. § 5104.
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          The convictions at issue stem from events which
          took place on the night of June 23, into June 24,
          2012. (Transcript of Proceedings, Jury Trial, October
          21, 2013 - October 23, 2013, p. 31) (hereinafter
          ‘N.T.’)

          At approximately 3 a.m. on June 24, 2014,
          [Emerson] walked through the alleyway behind the
          Political Club located at 1550 Vemon Street in
          Harrisburg. (N.T. pp. 163-64) [Emerson] testified
          that ‘four or five Hispanic males’ approached,
          accosted him, and struck him from behind. (N.T. p.
          164) [Emerson] fought with them for three or four
          minutes. (N.T. p. 184)

          While [Emerson] engaged in the fight, Benito
          Malave, another club patron, with no prior
          association with [Emerson], exited the Political Club
          from its rear door and witnessed the fight. (N.T. p.
          34) Malave testified that he did not want [Emerson]
          to suffer ‘abuse.’ (N.T. p. 36) Malave attempted to
          break up the fight by claiming the police were on
          their way. (N.T. p. 35) Malave then pulled one
          attacker away from [Emerson] and returned to
          [Emerson] to try to convince him to leave the scene.
          (N.T. p. 36) At this point, [Emerson] struck Malave,
          breaking his jaw and knocking a tooth loose. (N.T.
          pp. 38, 41, 75) Some testimony indicated [Emerson]
          may have struck Malave again after he fell to the
          ground. (N.T. p. 74) Malave suffered a serious injury
          that required two surgeries to repair. (N.T. p. 41,
          97) After striking Malave, [Emerson] fled to a nearby
          house. (N.T. pp. 88, 175) Malave testified that at
          this time, [Emerson] was ‘completely out of it,’ as
          though intoxicated. (N.T. p. 38) Another witness to
          the event, Sonya Millan, Malave's niece, described
          [Emerson] as ‘going crazy,’ hitting people, and
          ‘hitting his chest like he's the incredible hulk.’ (N.T.
          p. 85)

          After [Emerson] fled, Officer Steven Prisbe arrived
          on the scene in response to a disturbance call. (N.T.
          pp. 94-95) Prisbe took control of the situation and
          sent information to other officers to help apprehend

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          [Emerson]. (N.T. p. 97) Officer Anthony Fiore and a
          few other officers approached the house into which
          [Emerson] had fled. (N.T. p. 107) When told that
          [Emerson] was hiding behind the house, Fiore
          searched the yard with a flashlight. (N.T. p. 107)
          Fiore found [Emerson], who then jumped a fence
          and fled. (N.T. p. 108) [Emerson] ran approximately
          two blocks south, crossed both Thompson and Derry
          streets, then ran west on Drummond Street. (N.T.
          pp. 108-09) After turning north toward Derry Street,
          [Emerson] was apprehended by several officers.
          (N.T. p. 109)

          After     his    apprehension,      [Emerson]      was
          noncompliant. (N.T. p. 132) Officer Fiore attempted
          to search [Emerson], while [Emerson] screamed in
          Fiore's face. (N.T. pp. 114, 138) Because [Emerson]
          refused to comply, the officers placed [Emerson] on
          his back to better control him. (N.T. pp. 115, 138-
          39) While in this position, [Emerson] brought his
          legs off the ground, striking Fiore in the face, and
          brought one of his legs down on top of Fiore,
          possibly trying to bring Fiore down. (N.T., pp. 115-
          16, 138) Through his own testimony, [Emerson]
          admitted that he struck officer Fiore. (N.T. p. 192) In
          response to [Emerson]'s actions, the officers used
          soft body blows to subdue him, completed the
          search, and moved [Emerson] to the transport van.
          (N.T. p. 116) Malave identified [Emerson] before
          police booked him. (N.T. p. 134)

          Officer Fiore testified that during his arrest
          [Emerson] acted ‘like a lunatic,’ and that he
          challenged the police to fight. (N.T. p. 111) Fiore
          further testified that [Emerson] appeared to be
          under the influence of drugs or alcohol, although
          [Emerson] was not tested for either. (N.T. pp. 113-
          14, 122) Officer Henry similarly testified that
          [Emerson] screamed and challenged the officers to a
          fight, and that [Emerson] acted as though
          intoxicated. (N.T. pp. 130-31) Officer Donald Bender,
          who booked [Emerson], testified that [Emerson] was
          argumentative throughout the booking process, and
          that he appeared intoxicated. (N.T. pp. 150-51)

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                [Emerson] himself testified that he was ‘hysterical’
                and admitted he was uncooperative throughout the
                arrest and booking. (N.T. pp. 178, 191-93)

Trial Court Opinion, pp. 2-4. The jury found Emerson guilty of aggravated

assault against a police officer and resisting arrest but acquitted Emerson of

disorderly conduct and public drunkenness.         The jury could not reach a

decision on the charge of flight to avoid apprehension, and the trial court

declared a mistrial on this charge. The trial court sentenced Emerson to 18-

48 months’ imprisonment on the aggravated assault charge and a

concurrent sentence of 1-2 years’ imprisonment on the resisting arrest

charge.

      Emerson filed timely post-sentence motions challenging the weight of

the evidence on the aggravated assault and resisting arrest charges.       The

trial court denied Emerson’s motions.       Emerson filed a timely appeal, and

both Emerson and the trial court complied with Pa.R.A.P. 1925.

      As stated above, the lone issue on appeal is whether Emerson’s

convictions are against the weight of the evidence.       When reviewing such

claims, this Court’s role is not to consider the underlying question of whether

the verdict was against the weight of the evidence.        Commonwealth v.

Kane, 10 A.3d 327, 332-333 (Pa.Super.2010). Instead, we must decide if

the trial court palpably abused its discretion when ruling on the weight

claim.    Id.     In performing this task, we must remember that the initial

determination regarding the weight of the evidence is for the factfinder, who

is free to believe all, some or none of the evidence.       Id.   We must not


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reverse a verdict based on a weight claim unless that verdict was contrary to

the evidence so as to shock one's sense of justice.             Id.   Moreover, “[a]n

abuse of discretion is not a mere error in judgment but, rather, involves

bias,    ill   will,   partiality,   prejudice,   manifest    unreasonableness,    or

misapplication of law.” Id.

        An individual commits aggravated assault against a police officer when

he attempts to cause or intentionally or knowingly causes bodily injury to a

police officer. 18 Pa.C.S. § 2702(a)(3), (c)(1).             Intentionally punching a

police officer in the jaw and kicking her stomach constitutes aggravated

assault against a police officer.        Commonwealth v. Petaccio, 764 A.2d

582, 585-86 (Pa.Super.2000).

        In this case, police officers arrested Emerson shortly after a brawl

outside a bar. During the arrest, Emerson kicked Officer Fiore in the face

and then slammed his leg down on top of Officer Fiore in an attempt to bring

him down.       Officer Fiore testified as to these facts, and Emerson himself

admitted kicking Officer Fiore. N.T., pp. 191-92. Officer Henry testified that

Emerson acted “like a lunatic” and challenged the police to fight.             Thus,

there was unrebutted evidence of Emerson’s intentional and violent acts

against Officer Fiore. Based on this evidence, the trial court acted within its

discretion by concluding that the weight of the evidence supported the

verdict of aggravated assault against a police officer.

        We reach the same conclusion with regard to Emerson’s conviction for

resisting arrest. To prevail on this charge, the prosecution must show that

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the defendant, with intent to prevent an officer from effecting a lawful

arrest, creates a substantial risk of bodily injury to the officer or acts in such

a manner that require substantial force to overcome. 18 Pa.C.S. § 5104. In

this case, Emerson fled from police officers who were attempting to

apprehend him, kicked Officer Fiore in the face, forced multiple officers to

subdue him with soft body blows, screamed at officers throughout the

arrest, and challenged them to a fight.      Based on this evidence, the trial

court acted within its discretion by concluding that the weight of the

evidence supported the verdict of resisting arrest.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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