J-S69002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSEPH MAYS

                            Appellant                 No. 955 EDA 2013


            Appeal from the Judgment of Sentence March 11, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010618-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 23, 2014

        Appellant, Joseph Mays, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial conviction for resisting arrest or other lawful enforcement.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

During the early morning hours of June 17, 2011, Philadelphia Police Officers

Patrick Biles and Christopher Rommel received a police radio report of a

shooting at Marlowe and Dyre Streets in Northeast Philadelphia.         Shortly

thereafter, the officers received another report from Officer Christopher

Lewis, describing a silver Chevrolet SUV that was possibly involved in the

shooting. Officer Lewis indicated the SUV was traveling northbound on the
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1
    18 Pa.C.S.A. § 5104.
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4900 block of Frankford Avenue.     Officer Lewis also stated, “Use caution.

They may be armed.” (N.T. Trial, 3/6/13, at 68). At the time of the call,

Officers Biles and Rommel were traveling westbound on Pratt Street, headed

toward the intersection with Frankford Avenue.

      At that point, Officers Biles and Rommel observed the SUV execute a

right-turn into the eastbound lane of Pratt Street. The officers activated the

lights and sirens on their vehicle and maneuvered into the eastbound lane in

an attempt to stop the SUV. The SUV avoided a collision with the officers’

vehicle by jumping the curb, driving on the sidewalk, and cutting through a

shopping center parking lot.     The officers pursued the SUV for several

blocks. The back window of the SUV was tinted, and the officer could not

determine the number of occupants in the vehicle. Additionally, the officers

heard gunshots during the pursuit, but they could not determine whether

the shots had originated from the SUV.

      Ultimately, the SUV stopped in an alley.      The officers exited their

patrol car, drew their firearms, and approached the SUV.      Officer Rommel

approached the driver’s side and Officer Biles approached the passenger

side. The officers yelled at the occupants of the SUV, “Get your hands up.

Let me see your hands.”        (Id. at 44).   Specifically, Officer Biles was

concerned for his safety, as he was unsure whether the occupants were

armed.   Officer Biles looked into the SUV and saw Appellant sitting in the

passenger seat.   Officer Biles commanded Appellant to exit the SUV, but


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Appellant did not comply. Officer Biles opened the door, grabbed Appellant’s

shirt, and tried to remove Appellant from the vehicle. Appellant reached out

and clutched Officer Biles’ wrist.             Officer Biles holstered his firearm,

struggled with Appellant, and took Appellant to the ground.           While on the

ground, Appellant flailed his arms.             Ultimately, Officer Biles applied a

“control hold” to subdue Appellant and place him in handcuffs. (Id. at 104).

         Following trial, a jury convicted Appellant of resisting arrest or other

lawful enforcement. On March 11, 2013, the court sentenced Appellant to

one (1) to two (2) years’ imprisonment.             On March 13, 2013, Appellant

timely filed a post-sentence motion.             In it, Appellant argued the court

imposed an aggravated range sentence without considering mitigating

factors.2    Specifically, Appellant alleged he “had no prior record involving

crimes of violence, as well as strong community and family support.” (Post-

Sentence Motion, filed 3/13/13, at 4-5). The court denied Appellant’s post-

sentence motion on March 19, 2013.

         Appellant timely filed a notice of appeal on March 26, 2013. On March

20, 2014, this Court dismissed the appeal due to Appellant’s failure to file a

brief.    Appellant filed an application to reinstate the appeal on March 25,

2014, which this Court granted on March 31, 2014.               On May 25, 2014,
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2
  With a prior record score of five (5) and an offense gravity score of two
(2), the standard range for Appellant’s resisting arrest or other law
enforcement conviction was one (1) to nine (9) months, plus or minus three
(3) months for aggravating or mitigating circumstances.



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Appellant filed a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b).

      Appellant now raises two issues for our review:

         WAS NOT THE EVIDENCE INSUFFICIENT TO ESTABLISH
         APPELLANT’S GUILT AS A MATTER OF LAW, TO THE
         CHARGE OF RESISTING ARREST?

         WAS NOT THE SENTENCE IMPOSED EXCESSIVE AND
         CONSTITUTE[S] AN ABUSE OF DISCRETION, WHERE THE
         COURT FAILED TO LIST THE REASONS FOR AN
         AGGRAVATED SENTENCE AND THE COURT SEEMINGLY
         INTENDED TO PUNISH [APPELLANT] FOR EXERCISING HIS
         RIGHT TO A JURY TRIAL?

(Appellant’s Brief at 4).

      In his first issue, Appellant contends the Commonwealth’s evidence

demonstrated he was merely a passenger in a vehicle driven by his co-

defendant. Appellant asserts the Commonwealth did not produce evidence

“to suggest that Appellant played any role in the…co-defendant’s actions in

evading and fleeing from police on June 17, 2011.” (Appellant’s Brief at 10).

Absent more, Appellant argues the officers did not have probable cause to

arrest him. On this basis, Appellant concludes the Commonwealth presented

insufficient evidence to support his conviction for resisting arrest or other

law enforcement. We disagree.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is:

         [W]hether viewing all the evidence admitted at trial in the
         light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every

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           element of the crime beyond a reasonable doubt. In
           applying [the above] test, we may not weigh the evidence
           and substitute our judgment for the fact-finder.           In
           addition, we note that the facts and circumstances
           established by the Commonwealth need not preclude every
           possibility of innocence.      Any doubts regarding a
           defendant’s guilt may be resolved by the fact-finder unless
           the evidence is so weak and inconclusive that as a matter
           of law no probability of fact may be drawn from the
           combined circumstances. The Commonwealth may sustain
           its burden of proving every element of the crime beyond a
           reasonable doubt by means of wholly circumstantial
           evidence. Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the [trier] of fact
           while passing upon the credibility of witnesses and the
           weight of the evidence produced, is free to believe all, part
           or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      Section 5104 of the Crimes Code defines the offense of resisting arrest

or other law enforcement as follows:

           § 5104. Resisting arrest or other law enforcement

               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 (emphasis added).

      Instantly, the trial court evaluated Appellant’s sufficiency challenge as

follows:


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        At the time Police Officer Biles approached Appellant on
        the passenger side of the vehicle, he was justified in
        initiating a safety frisk for weapons, a duty as a law
        enforcement officer. While on routine patrol, Officer Biles
        received a radio call at approximately 2:00 a.m. regarding
        gunshots. He subsequently received information leading
        him to encounter the target vehicle and possible suspects.
        During the ensuing vehicle chase, Officer Biles heard
        gunshots of unknown origin. Additionally, Officer Biles
        received a cautionary radio alert that the suspects may be
        armed. The evidence pertaining to the discharge of a
        firearm suggested that Officer Biles had a reasonable
        concern that Appellant may have had a weapon in his
        possession. Accordingly, the jury was warranted in finding
        that effectuating a weapons frisk was a legitimate duty at
        the time Officer Biles approached Appellant. Officer Biles
        stated, “[W]e were yelling at them in loud voices, ‘get your
        hands up, let me see your hands,” for our safety, [to]
        make sure they didn’t have any weapons.” The evidence
        therefore sufficiently established that Appellant intended to
        prevent Officer Biles from performing a weapons frisk by
        grabbing him and initiating a struggle on the ground.

        Appellant seemingly ignores the disjunctive clause
        discharging any other duty of Section 5104, implicitly
        arguing that the lawful arrest clause is a necessary
        element of the offense. The plain reading of the statute
        does not support Appellant’s characterization.

(See Trial Court Opinion, filed June 13, 2014, at 2-3) (emphasis in original)

(internal footnote and citations to the record omitted). We agree with the

court and emphasize that Officer Biles provided particular facts from which

he reasonably inferred Appellant was armed and dangerous, thereby

justifying a frisk for weapons. See Commonwealth v. Preacher, 827 A.2d

1235, 1239 (Pa.Super. 2003) (explaining officer can conduct pat-down of

suspect’s outer garments for weapons if, during course of valid investigatory

stop, officer reasonably believes suspect may be armed and dangerous).

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See also Commonwealth v. Coleman, 19 A.3d 1111 (Pa.Super. 2011)

(holding sufficient evidence supported defendant’s conviction for resisting

arrest or other law enforcement where defendant struggled with officer who

attempted to remove defendant’s hand from pocket; officer received police

radio call for armed robbery in progress, officer drove to location of robbery

and observed defendant, who matched description of robber, and defendant

refused to comply with officer’s request that defendant remove his hand

from his pocket).   Consequently, sufficient evidence supported Appellant’s

conviction for resisting arrest or other law enforcement.      See Hansley,

supra.

      In his second issue, Appellant contends the sentencing court imposed

an aggravated range sentence without considering mitigating factors,

specifically the fact that Appellant’s criminal history included non-violent

offenses. Appellant concludes the court abused its discretion by imposing an

excessive sentence. Appellant’s challenge is to the discretionary aspects of

his sentence.   See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.

2002) (stating claim that sentence is manifestly excessive challenges

discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.     Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).     Prior to reaching the merits of a discretionary

sentencing issue:


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           [W]e conduct a four-part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal, see
           Pa.R.A.P. 902 and 903; (2) whether the issue was properly
           preserved at sentencing or in a motion to reconsider and
           modify sentence, see Pa.R.Crim.P. 720; (3) whether
           appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
           (4) whether there is a substantial question that the
           sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).3

       When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness       of    the     sentence     under   the   Sentencing   Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f).     “The requirement that an appellant separately set forth the

reasons relied upon for allowance of appeal ‘furthers the purpose evident in

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3
  In his statement of issues presented, Appellant mentions that the sentence
imposed by the court “seemingly intended to punish [Appellant] for
exercising his right to a jury trial[.]” (Appellant’s Brief at 4). Appellant,
however, failed to preserve this claim in his post-sentence motion. See
Mann, supra.



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the Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision

to exceptional cases.’”      Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc) (emphasis in original)).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.          Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Sierra, supra at 912-13. “A substantial question is

raised where an appellant alleges the sentencing court erred by imposing an

aggravated     range      sentence    without    consideration    of   mitigating

circumstances.”      Commonwealth v. Hyland, 875 A.2d 1175, 1183

(Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).

      Instantly, Appellant properly preserved his claim regarding the court’s

purported    error   in   imposing   an    aggravated   range   sentence   without

consideration of mitigating circumstances.       As presented, Appellant’s claim

appears to raise a substantial question as to the discretionary aspects of his

sentence. See id.


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      Our standard of review concerning the discretionary aspects of

sentencing is as follows:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish,
         by reference to the record, that the sentencing court
         ignored or misapplied the law, exercised its judgment for
         reasons of partiality, prejudice, bias or ill will, or arrived at
         a manifestly unreasonable decision.

Id. at 1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214

(Pa.Super. 1999) (en banc)).

      “[A] court is required to consider the particular circumstances of the

offense and the character of the defendant.”       Commonwealth v. Griffin,

804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.

2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the

defendant’s prior criminal record, his age, personal characteristics and his

potential for rehabilitation.” Id.

      Instantly, the record belies Appellant’s contention that the court failed

to consider the mitigating factors at issue.         Immediately following the

announcement of the jury’s verdict, Appellant waived his right to a pre-

sentence investigation report and proceeded to sentencing.          At that time,

the Commonwealth emphasized Appellant’s extensive criminal history:

         [THE COMMONWEALTH]:           Your             Honor,        the
         Commonwealth is asking for one to two.

         [Appellant]―I guess I’ll―since we don’t have a pre-

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         sentence report, I’ll just inform the court―and the court
         can look at his record―it’s extensive.

         [Appellant’s] been convicted of [possession of a controlled
         substance with intent to deliver (“PWID”)] in 2000
         on―one, two, three, four―four separate PWIDs that he
         consolidated in 2000 before Judge Wood-Skipper. He has
         a separate PWID before Judge Hughes in 2003. There’s
         the case that he’s on right now, which is another PWID
         with Judge Bronson, from 2010. Then there is―he has a
         juvenile record. He also has another PWID conviction in
         2000 before Judge Nyfield (ph). Another PWID conviction
         in 2000 before Judge Gehret. He has a PWID conviction in
         2007 before Judge Meehan.

         THE COURT:                            Are    they    all     separate
         PWIDs?

         [THE COMMONWEALTH]:                   The 2007 before Judge
         Meehan is actually―

         [DEFENSE COUNSEL]:                    He    consolidated      several
         PWIDs.

         [THE COMMONWEALTH]:                   Two PWIDs and a DUI
         consolidated.

(See N.T. Trial and Sentencing, 3/11/13, at 32-33.)                 The Commonwealth

also detailed Appellant’s history while on probation, which included multiple

violations.

      Defense   counsel,   however,     requested       the   court     to    impose   a

probationary sentence.     The court asked defense counsel, “Who gets

probation when you’ve been convicted ten times or more?”                     (Id. at 36).

Defense counsel conceded Appellant had a “major problem with the state

parole board with this case.” (Id.) Consequently, defense counsel revised

his request, asking for “a sentence within the guideline range.”                    (Id.)

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Thereafter, the court and defense counsel discussed the applicability of

various aggravating circumstances.    At the conclusion of the hearing, the

court imposed the sentence of one to two years’ imprisonment.

     Despite Appellant’s protests that the court failed to appreciate the

non-violent nature of his prior offenses, the court emphasized its concerns

over the volume of crimes Appellant had committed. Significantly, the court

considered the nature and circumstances of the offense at issue. The court

also observed Appellant and considered the statements from Appellant’s

counsel.   Under these circumstances, we see no abuse of discretion.   See

Hyland, supra. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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