J-S22045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONELL C. HALL,

                            Appellant                 No. 895 MDA 2016


             Appeal from the Judgment of Sentence May 20, 2016
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0003172-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 25, 2017

        Appellant, Donell C. Hall,[1] appeals from the judgment of sentence

imposed after his jury conviction of resisting arrest.2 We affirm.

        We take the factual background of this case from our independent

review of the certified record and the trial court’s July 25, 2016 opinion.

             On April 6, 2015, Detective Dennis Simmons [] and
        Detective Donald Heffner [] of the Harrisburg Bureau of Police
        Organized Crime and Vice Control Unit were in plain clothes in an
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant’s name also appears in the certified record as Charles Donell
Hall. (See, e.g., Arraignment, 7/27/15, at 1). However, we will use the
name as it is listed on the trial court docket and in the trial court’s opinion.
(See Trial Court Docket, CP-22-CR-003172-2015, at 2; Trial Court Opinion,
7/25/16, at 1).
2
    18 Pa.C.S.A. § 5104.
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       unmarked vehicle patrolling the city of Harrisburg.             At
       approximately 3:00 P.M., they were in the area of 13th and
       Swatara Streets when they heard loud music coming from a red
       Dodge Magnum parked on the south side of the street. The
       music was so loud that the windows on the vehicle were
       vibrating. When they passed the vehicle, Detective Simmons
       observed Appellant’s co-defendant, Curtis Hall [(Curtis),3] to be
       in the driver’s seat. At that time, Detective Simmons made the
       decision to issue a citation,[a] but had to drive around the block
       to get back to where the vehicle was parked.
              [a]
                   There is a city ordinance in Harrisburg which
              prohibits loud noise and loud music, and a violation
              occurs when you can hear the music/noise within
              fifty (50) feet of where you are standing.   It is a
              summary citation which Detective Simmons testified
              that he has issued numerous times as both a
              uniformed officer and a detective.

              By the time the detectives came back around and parked
       on Swatara Street, Detective Simmons observed Curtis in the
       yard to the rear of 401 South 13th Street walking towards the
       rear entrance of the building. The yard was fenced in, but the
       gate was open. Detective Simmons approached Curtis in the
       yard, identified himself as a police officer and asked for his
       identification in order to issue the citation. . . .

             Since Curtis was not complying with verbal commands and
       was becoming [increasingly] agitated and aggressive, Detective
       Simmons made the decision to detain Curtis, primarily for officer
       safety. . . . [Curtis continued to resist, and] Detective Heffner
       came over to assist. . . .

              In the midst of the struggle between Curtis and the
       detectives, several people came out of the residence where the
       incident began and started to gather around. One of those
       people was Appellant, who approached the scene and began
       yelling at the detectives, asking why they were wrestling with his

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3
 Curtis filed a separate appeal from his judgment of sentence in this matter,
at docket number 894 MDA 2016.



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      brother. Appellant was told several times to step back away
      from the scene.

            Appellant refused, and continued to walk towards the
      detectives with his hands clenched and chest expanded in an
      aggressive stance. Detective Heffner testified that he thought
      Appellant was going to swing at Detective Simmons. Appellant
      came so close to the detectives while they were still struggling
      with Curtis that Detective Simmons had to risk releasing the
      grasp on Curtis in order to push Appellant away. Appellant
      pushed Detective Simmons back. At this time, there were
      approximately fifteen (15) to twenty (20) people that had come
      out of their residences to see what was going on and Detective
      Heffner believed they were outnumbered and starting to lose
      control. The crowd was yelling and cursing, and ultimately made
      the entire situation volatile and dangerous.

             After Curtis was arrested and placed into handcuffs,
      Detective Heffner told Appellant that he would be arrested for
      interfering with the lawful arrest of Curtis.     Appellant was
      directed to place his hands behind his back. He refused and
      when Detective Heffner reached for Appellant’s arm, Appellant
      grabbed both of Detective Heffner’s wrists and shoved him
      backwards.    Detective Heffner shoved Appellant back in an
      attempt to gain control. Detective Simmons [saw] the struggle
      between Detective Heffner and Appellant, [swept] Appellant’s
      feet and they all [fell] to the ground. Appellant then [tried] to
      stand up, refusing to give the detectives his arm to be
      handcuffed. At that time, back-up officers and probation officers
      arrived on scene, and came over to assist in the arrest of
      Appellant.

             Since Appellant was unable to be controlled, Detective
      Heffner asked Probation Officer Brandon Rigel [] to deploy the
      stun gun on Appellant. PO Rigel deployed a drive stun to
      Appellant’s leg, and [the] detectives were finally able to get
      Appellant’s arms behind his back to be handcuffed. By the end
      of the struggle, Detective Heffner had a scraped right hand,
      scrapes up and down his right arm, and bruising on the back of
      his right arm. In addition, his glasses were knocked off during
      the struggle and were scratched.

(Trial Court Opinion, 7/25/16, at 2-5) (record citations omitted).


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        The Commonwealth charged Appellant with two counts of resisting

arrest, and one count each of obstructing administration of law 4 and criminal

mischief─damage to property.5             On May 20, 2016, the jury convicted

Appellant of one count of resisting arrest.       The same day, the trial court

sentenced him to twenty-four months’ county probation.          Appellant timely

appealed on May 25, 2016, and filed a timely court-ordered statement of

errors complained of on appeal on June 7, 2016. The court filed an opinion

on July 25, 2016. See Pa.R.A.P. 1925.

        Appellant raises one issue for this Court’s review:

        I.    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?

(Appellant’s Brief, at 5).

        As a preliminary matter, we observe that question I(B) is waived

because our review of the certified record confirms the trial court’s

observation that Appellant did not challenge the lawfulness of his underlying

arrest in the trial court. (See Trial Ct. Op., at 9); see also Pa.R.A.P. 302(a)

____________________________________________


4
    18 Pa.C.S.A. § 5101.
5
    18 Pa.C.S.A. § 3304(a)(5).



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(“Issues not raised in the [trial] court are waived and cannot be raised for

the first time on appeal.”).     Therefore, we confine our review to question

I(A).

        Our standard of review is well-settled:

               In reviewing the sufficiency of the evidence, we must
        determine whether the evidence admitted at trial, and all
        reasonable inferences drawn from that evidence, when viewed in
        the light most favorable to the Commonwealth as verdict winner,
        was sufficient to enable the fact finder to conclude that the
        Commonwealth established all of the elements of the offense
        beyond a reasonable doubt. The Commonwealth may sustain its
        burden by means of wholly circumstantial evidence. Further, the
        trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Reese, 2017 WL 750789, at *5 (Pa. Super. filed Feb.

27, 2017) (citation omitted). Pursuant to section 5104 of the Crimes Code:

              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.A. § 5104.

        In this case, Appellant argues that the evidence was insufficient to

support his conviction where “the Commonwealth failed to prove that [he]

created a substantial risk of bodily injury or resisted arrest by means

justifying or requiring substantial force to overcome his resistance.”

(Appellant’s Brief, at 12) (unnecessary capitalization and emphasis omitted).

We disagree.




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             The statute, it is clear, does not require the aggressive use
      of force such as a striking or kicking of the officer. A person
      resists arrest by conduct which “creates a substantial risk of
      bodily injury” to the arresting officer or by conduct which
      justifies or requires “substantial force to overcome the
      resistance.”

Commonwealth v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984) (footnote

omitted) (emphasis added).       In other words, “the statute includes the

disjunctive phrase ‘or employs means justifying or requiring substantial force

to overcome resistance.’”   Commonwealth v. Lyons, 555 A.2d 920, 925

(Pa. Super. 1989) (concluding that elements for resisting arrest were met

where it took four deputies to subdue appellant, thereby requiring

substantial force “to overcome appellant’s resistance to the arrest.”)

(citations omitted).

      Here, the trial court explained:

      Detectives Simmons and Heffner testified as to how Appellant
      interfered with their lawful arrest of Curtis. Appellant was yelling
      and screaming. (See N.T. Trial, 5/19/16, at 27-28, 30, 90-91).
      He came up behind the detectives in an aggressive stance, [was
      told to step back, but instead charged toward them,] and
      Detective Heffner believed Appellant was going to punch
      Detective Simmons. (See id. at 27-28, 90, 126). This caused
      Detective Simmons to let go of Curtis, leaving Detective Heffner
      alone in trying to handcuff him, in order to get Appellant to back
      away from the scene. (See id. at 90, 126).

            In addition, when Detective Heffner advised Appellant that
      he would be placed under arrest for his interference with the
      lawful arrest of Curtis, Appellant refused to comply[, grabbed
      both of the detective’s wrists,] and shoved [him]. (See id. at
      30, 91, 127). Detective Heffner shoved back and a struggle[]
      ensued. (See id. at 91, 127). Detective Heffner testified that
      by this time he was exhausted from the previous struggle with
      Curtis. (See id. at 92). He also stated that the crowd around

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J-S22045-17


       them had grown and had become unruly, causing the detectives
       to be outnumbered and believe they were losing control of the
       situation. (See id. at 28, 90).

             PO Rigel also testified at the trial and corroborated the
       testimony of both Detective Simmons and Detective Heffner.
       When PO Rigel arrived on scene, he observed Appellant pulling
       away and flailing around from the detectives as they were trying
       to detain him. (See id. at 137). Appellant refused to give the
       detectives his hands, therefore the detectives requested PO Rigel
       to deploy his Taser, and he did. (See id. at 92, 137) After
       being tased, the detectives were finally able to forcibly place
       Appellant in handcuffs. (See id. at 137). PO Rigel also testified
       that Appellant appeared to be bigger than both Detective
       Simmons and Detective Heffner. (See id. at 138).

(Trial Ct. Op., at 6-7) (footnote omitted) (record citation formatting and

some record citations provided).

       The foregoing facts establish that, with the intent of preventing a

lawful arrest, Appellant resisted police, requiring their use of substantial

force to overcome his resistance. See Lyons, supra at 925; Miller, supra

at 146.    Hence, we conclude that the trial court properly found that the

evidence was sufficient to support Appellant’s conviction.       See Reese,

supra at *5. Appellant’s issue does not merit relief. 6

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6
   Neither are we legally persuaded by Appellant’s reliance on
Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981). (See
Appellant’s Brief, at 13-16). In Rainey, officers woke the defendant from a
drunken stupor, handcuffed him, and were escorting him to the police
vehicle when he attempted to flee. See Rainey, supra at 1148-49. To
thwart that attempt, the officer grabbed the defendant by the sleeve and he
“began to shake himself violently, to wiggle and squirm in an attempt to free
himself of the officer’s grasp.” Id. at 1149. This Court found that the
Commonwealth failed to establish that the defendant resisted arrest, and
(Footnote Continued Next Page)


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J-S22045-17


      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




                       _______________________
(Footnote Continued)

that at most this was a minor scuffle, where the defendant merely
attempted to “shake off the policeman[] detaining [him,]” and he neither
“struck, nor struck out at the arresting officers; nor did he kick or push
them.” Id. at 1150. However, here, Appellant aggressively approached the
scene of Curtis’ arrest, yelled at the detectives, refused to back away,
shoved a detective, and fought the attempts to handcuff him, all in what the
detectives assessed as a dangerous, volatile situation. These circumstances
are distinguishable from the minor scuffle presented in Rainey. Moreover,
Rainey only considered the amount of force a defendant must expend for a
resisting arrest claim. It did not address the “substantial force” required by
the police to overcome the defendant’s resistance. Therefore, for all of
these reasons, Rainey is inapposite to the circumstances presented here
and is not legally persuasive.



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