J-S17002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILLIAM JOSEPH MOONEY                     :
                                           :
                     Appellant             :   No. 1834 MDA 2019

        Appeal from the Judgment of Sentence Entered July 16, 2019
            In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0002040-2018

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

MEMORANDUM BY PANELLA, P.J.:             FILED: APRIL 20, 2020

      William Joseph Mooney appeals from the judgment of sentence entered

in the Schuylkill County Court of Common Pleas after a jury found him guilty

of simple assault, see 18 Pa.C.S.A. § 2701(a)(1), and resisting arrest, see 18

Pa.C.S.A. § 5104. On appeal, Mooney asserts that the evidence was

insufficient to establish that he resisted arrest. After a thorough review of the

record, we affirm.

      A Mahanoy City police officer, Officer Williams, responded to a report

that a male was hanging out of a window on the third-floor of a divided,

abandoned, and dilapidated house. The officer entered the house and walked

up to the second floor. Upon hearing someone on the third floor, the officer

identified himself and requested that person to come down to the second floor.

Thereafter, the officer saw Mooney standing on the roof looking into the
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window of the attic. It is uncontested that Mooney’s parents owned at least

one half of the divided property.

      The officer tried to get Mooney to leave the roof and come back into the

building, but Mooney asserted that the officer was trespassing and that the

officer should leave given the unstable state of the building. Mooney then left

the roof and entered through a window on the other half of the divided

property. Noticing the unsafe floors around him and concerned with his own

safety, the officer left the building and started to look for Mooney in the

surrounding area outside.

      While driving, the officer spotted Mooney on foot, exited his vehicle, and

explained to Mooney that he was under arrest for criminal trespass. Mooney

claimed that he did nothing wrong, and when the officer attempted to handcuff

him, he pulled his arm away and began backing up from where he had been

standing.

      After Mooney’s continued noncompliance, the officer deployed a Taser

on Mooney’s upper body. Mooney fell backward, and the officer again

attempted to handcuff him. However, during this second attempt, Mooney

flailed his arms, backhanded the officer with a fist to the officer’s jaw, and

proceeded to run away.

      The officer later found Mooney lying in a roadway where he was

complaining that he could not walk and also speaking in an angry and

incomprehensible manner. Mooney was taken away by an ambulance, but

while the ambulance was en route to the hospital, Mooney became

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uncooperative with the EMTs. After the ambulance had to be stopped, it took

the officer, the two EMTs, and another officer to subdue Mooney, and Mooney

was handcuffed.

      At trial, the jury found Mooney guilty of simple assault against EMT

Eugene Kelly stemming from the incident in the ambulance and of resisting

arrest. The trial court sentenced him to two to twelve months of incarceration

for resisting arrest and a concurrent six to twelve months for simple assault.

Both Mooney and the trial court have complied with the dictates of Pa.R.A.P.

1925, so the appeal is properly before us.

      On appeal, Mooney presents one issue for our review:

      1) Did the Commonwealth present sufficient evidence to support
      the elements of the crime for a conviction for resisting arrest?

Appellant’s Brief, at 4.

      “We review claims regarding the sufficiency of the evidence by

considering whether, 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 element of the crime beyond a reasonable doubt.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations

omitted). “Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Id. “In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder.” Id.

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      Mooney challenges only the sufficiency of the evidence supporting his

conviction for resisting arrest. A person is guilty of resisting arrest 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.

From this statutory precept, our Supreme Court has emphasized that to be

convicted of resisting arrest, the underlying arrest must be lawful. See

Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa. 1995). For an arrest to

be lawful, there must be probable cause to arrest the defendant. See id. As

to the resisting component of the offense, we have held that even passive

resistance that requires the use of substantial force is sufficient to sustain a

conviction for resisting arrest. See Commonwealth v. McDonald, 17 A.3d

1282, 1286 (Pa. Super. 2011) (sustaining conviction where defendant refused

to comply with police when officers attempted to handcuff him, and after

threatening to taser him if he did not comply, did in fact do so). However,

minor scuffling that is inherent to some arrests is not sufficient to establish

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

Super. 1981).

      Mooney’s argument is a purely legal one and consists of two assertions.

First, he contends that since he was found guilty only of assaulting Kelly, and




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not Officer Williams, the interaction involving the Taser cannot form the basis

of his conviction for resisting arrest.

      Initially, we note that inconsistent verdicts are not a basis for vacating

either verdict. See Commonwealth v. Thomas, 65 A.3d 939, 944-945 (Pa.

Super. 2013). Accordingly, the fact that the jury found Mooney not guilty of

assaulting Officer Williams would not prevent it from determining that Mooney

was guilty of resisting arrest based on the same allegations.

      Next, Mooney contends that he was no longer being pursued by Officer

Williams when he had the altercation in the ambulance. As noted above, the

jury was free to find Mooney guilty based on the allegations involving the use

of the Taser. Even assuming that incident did not occur, the altercation in the

ambulance was sufficient, on its own, to support the conviction. When the

EMTs and Officer Williams attempted to subdue Mooney, he resisted their

efforts, requiring the use of substantial force. Officer Williams ultimately

placed Mooney in handcuffs.

      Mooney also argues that he did not intentionally strike Officer Williams:

“The defendant was merely running away and his flailing arm accidentally

struck Officer Williams.” See Appellant’s Brief, at 9. However, the jury was

entitled to infer that Mooney’s actions were intentional, not the product of

accident. See Commonwealth v. Jackson, 955 A.2d 441, 446 (Pa. Super.

2008) (noting that intent is a subjective state of mind that does not require

direct evidence to establish).


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      We note that Mooney has not challenged the legality of his arrest on

appeal. See Appellant’s Brief, at 8-10.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/2020




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