J-S45023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMIL DABNEY

                            Appellant                No. 1447 EDA 2016


            Appeal from the Judgment of Sentence January 11, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000988-2015
                                          CP-51-CR-0000989-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 14, 2017

        Appellant, Jamil Dabney, appeals from the judgment of sentence

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

convictions for possession with intent to deliver (“PWID”), recklessly

endangering another person (“REAP”), and resisting arrest.1 We affirm.

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

On November 18, 2014, two on-duty Philadelphia police officers in a marked

squad car observed Appellant engage in a hand-to-hand drug transaction.

The officers attempted to apprehend Appellant, but were unsuccessful.

About an hour later, the officers again spotted Appellant near the same
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, and 5104, respectively.
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corner. Appellant appeared to engage in another hand-to-hand drug

transaction.

      Officer Lewis exited the squad car and chased Appellant on foot, while

Officer James attempted to follow in the car. Officer Lewis tackled Appellant

in a nearby alley. Appellant fumbled with the waistband of his pants, and

ignored Officer Lewis’s commands to show his hands. Appellant then reached

toward Officer Lewis’s chest and pulled his police radio off. Appellant

grabbed Officer Lewis by the neck and began applying pressure. Officer

Lewis struck Appellant in the head with his elbow several times until

Appellant released the officer’s neck. Appellant then stood and tried to flee.

      Officer James approached Officer Lewis and Appellant on foot, and

assisted Officer Lewis in putting Appellant in handcuffs. The officers

recovered two crushed vials of phencyclidine, commonly called PCP, from the

ground where Officer Lewis had tackled Appellant.

      Appellant   was   charged   with   PWID,   possession   of   a   controlled

substance, aggravated assault, simple assault, REAP, and resisting arrest.

Appellant filed a pretrial motion to quash based on the Commonwealth’s

alleged failure to make out a prima facie case; the trial court denied

Appellant’s motion. Appellant then filed a motion to suppress the drugs

recovered from the scene of his arrest, claiming the officers had no

reasonable suspicion or probable cause to stop Appellant. The trial court also

denied that motion, and Appellant proceeded to a bench trial. The court




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convicted Appellant of PWID, REAP, and resisting arrest, and determined

Appellant was not guilty of the other charged offenses.

      The court sentenced Appellant to fifteen to thirty months’ incarceration

on the PWID conviction, plus an aggregate 4 years’ probation on the REAP

and resisting arrest convictions. Appellant timely filed a post-sentence

motion challenging the sufficiency of the evidence supporting each of his

convictions. The court denied the motion. Appellant appealed.

      In his first issue, Appellant challenges the sufficiency of the evidence

supporting his conviction for resisting arrest. He claims the Commonwealth

failed to present evidence demonstrating his brief struggle with Officer Lewis

did not constitute resisting arrest, as Appellant did not create a substantial

risk of injury to either officer. Appellant contends contact between officers

and arrestees should be viewed on a continuum, with only the most serious

cases violating the statute. Appellant insists his conduct was comparatively

“mild” and thus does not qualify as resisting arrest. We disagree.

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

evaluate the record “in the light most favorable to the verdict winner giving

the prosecution the benefit of all reasonable inferences to be drawn from the

evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009)

(citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of

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      wholly circumstantial evidence. Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.
      Any doubt about the defendant’s guilt is to be resolved by the
      factfinder unless the evidence is so weak and inconclusive that,
      as a matter of law, no probability of fact can be drawn from the
      combined circumstances.

Id. (citations and quotation marks omitted; brackets in original).

The Pennsylvania Crimes Code defines resisting arrest 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.

      “In order for a person to be guilty of resisting arrest, there must first

have been a lawful arrest.” Commonwealth v. Stevenson, 894 A.2d 759,

775 (Pa. Super. 2006) (emphasis in original; citation omitted). Bodily injury

is the impairment of a physical condition or substantial pain. See 18

Pa.C.S.A. § 2301.

      A minor scuffle is insufficient to support a conviction for resisting

arrest. See, e.g., Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa.

Super. 1981) (holding that simply trying to escape from officer’s grip did not

meet requirements for resisting arrest). However, more violent forms of

struggling, such as kicking or hitting an arresting officer, constitute resisting

arrest. See, e.g., Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.

Super. 2011); Stevenson, 894 A.2d at 775. The Commonwealth, however,



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need not prove that an officer was actually injured by the defendant’s

conduct; merely that the defendant created a risk that the officer could be

injured. See Commonwealth v. Jackson, 907 A.2d 540, 546 (Pa. Super.

2006).

      We find that the Commonwealth met its burden in presenting sufficient

evidence to convict Appellant of resisting arrest. The officers had probable

cause to lawfully arrest Appellant based on the two hand-to-hand drug

transactions they witnessed. Appellant did not merely attempt to run from

the police or to escape Officer Lewis’s grasp, but instead took the

affirmative, violent step of grabbing Officer Lewis by his neck. Though

Officer   Lewis   was   not   actually    injured   by   Appellant’s   action,   the

Commonwealth need not prove that Appellant inflicted injury, only that he

created a risk that he could have done so, which is certainly the case here.

Consequently, this issue merits no relief.

      In his second issue, Appellant challenges the sufficiency of the

evidence to support his conviction for REAP. Appellant contends he did not

put Officer Lewis in actual danger of death or serious bodily injury, since

Officer Lewis said that Appellant’s hands on his neck did not obstruct his

breathing. Appellant also avers the evidence does not demonstrate that he

consciously disregarded a known risk of serious bodily injury. We disagree.

      To establish REAP, the Commonwealth must show that a person

recklessly engaged in conduct which placed or may have placed “another

person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The

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Commonwealth is required to show that the defendant “consciously

disregarded” the risk of death or serious bodily injury. Commonwealth v.

Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003). “Serious bodily injury” is

that which creates “a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301. A REAP conviction will

be sustained where the circumstances show that Appellant “had an actual

present ability to inflict harm and not merely the apparent ability to do so.”

Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. 2006) (citation

omitted).

      As mentioned, Appellant placed his hands around Officer Lewis’s neck

and applied pressure. By doing so, Appellant consciously disregarded the risk

that he could obstruct Officer Lewis’s breathing and thereby seriously injure

the officer. Though Appellant did not actually harm Officer Lewis, the statute

requires only that Appellant engaged in conduct that may have placed

Officer Lewis in danger of death or serious bodily injury. Appellant’s

placement of his hands around Officer Lewis’s neck created that very risk.

Appellant had the actual, present ability to inflict harm on the officer when

Appellant choked him. He is entitled to no relief on this claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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