J-S24027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT L. HOWARD

                            Appellant                 No. 1275 WDA 2016


          Appeal from the Judgment of Sentence entered July 26, 2016
            In the Court of Common Pleas of Westmoreland County
               Criminal Division at No: CP-65-CR-0000645-2015


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                              FILED JUNE 22, 2017

        Appellant, Robert L. Howard, appeals from the judgment of sentence

entered on July 26, 2016 in the Court of Common Pleas of Westmoreland

County after a jury convicted him of simple assault, 18 Pa.C.S.A.

§ 2701(a)(1). Following review, we affirm.

        Appellant was arrested on January 24, 2015, and was charged with

aggravated assault, disarming a law enforcement officer, and resisting

arrest. Following a hearing on his petition for habeas corpus relief and his

motion to quash the arrest and suppress evidence, the trial court determined

that the arresting officers lacked both reasonable suspicion and probable

cause to arrest Appellant. Therefore, the charge of resisting arrest could not
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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be sustained and Appellant’s motion to quash and suppress was granted as

to that charge.       Trial Court Order, 9/16/15, at 1; Trial Court Opinion,

9/16/15, at 2-4.        However, his motion was denied with respect to the

remaining charges. Id.

       On April 8, 2016, the Commonwealth filed an amended information,

removing the resisting arrest charge and adding a charge of simple assault.

At the conclusion of a May 2, 2016 trial, the jury found Appellant not guilty

of aggravated assault and disarming a law enforcement officer, but guilty of

simple assault. On July 26, 2016, the trial court sentenced Appellant to a

total of one to two years in prison.           This timely appeal followed.   Both

Appellant and the trial court complied with Pa.R.A.P. 1925.1

       Appellant presents two issues for our consideration:

       I.     Whether the verdict of guilty of simple assault was supported by
              sufficient evidence.

       II.    Whether the trial court erred in determining that the dismissal of
              Appellant’s [r]esisting [a]rrest charge was not relevant, where []
              Appellant claims that his resistance to the illegal arrest, without
              use of force, was lawful.

Appellant’s Brief at 4.

       In his first issue, Appellant argues the evidence was insufficient to

support his conviction of simple assault.            As defined in 18 Pa.C.S.A.

____________________________________________


1
 We remind Appellant’s counsel of the requirement to attach a copy of the
Rule 1925(b) statement of errors complained of and the trial court’s Rule
1925(a) opinion to an appellant’s brief. See Pa.R.A.P. 2111.



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§ 2701(a)(1) (Simple Assault), “a person is guilty of assault if he [] attempts

to cause or intentionally, knowingly or recklessly causes bodily injury to

another[.]”

      In Commonwealth v. Rahman, 75 A.3d 497 (Pa. Super. 2013), this

Court instructed:

      We are guided by the following standard of review when
      presented with a challenge to the sufficiency of the evidence
      supporting a defendant’s conviction:

         As a general matter, our standard of review of sufficiency
         claims requires that 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. Widmer, 560 Pa. 308,
         744 A.2d 745, 751 (2000). Evidence will be deemed
         sufficient to support the verdict when it establishes each
         material 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.        Any doubt about the
         defendant’s guilt is to be resolved by the fact finder 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. at 500-01 (Pa. Super. 2013) (quoting Commonwealth v. Pettyjohn,

64 A.3d 1072, 1074 (Pa. Super. 2013) (internal citations and quotations

omitted)).

      Testimony presented at trial revealed that on January 24, 2015, at

approximately 2:00 p.m., Police Sergeant Marcia Cole and Officer Wes

Biricocchi from the Arnold, Pennsylvania Police Department separately

responded to a 9-1-1 dispatch call.        According to the dispatch call, an


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individual who may have robbed a New Kensington grocery store had been

observed at a local intersection in a high crime area. Both officers located

Appellant based on the description provided, with Officer Biricocchi arriving

just before Sergeant Cole. Sergeant Cole pulled her patrol vehicle alongside

Appellant and asked if she could speak with him. He agreed and provided

his name.

          Sergeant Cole asked Appellant for identification and testified that

Appellant turned a little bit and started to reach his hand down inside his

pants, putting Sergeant Cole on alert because, as she explained, “that’s not

where someone would keep their ID.”          Notes of Testimony (“N.T.”), Trial,

5/2/16, at 51.      She instructed Appellant to wait until she had patted him

down for weapons. She then lifted his left arm to prevent him from putting

it into his pants. Id. As she initiated the pat down, Appellant began to take

flight.    Id. at 52.   Sergeant Cole grabbed his jacket and he dragged her

about four feet down the sidewalk. Id. As Officer Biricocchi attempted to

restrain Appellant, Appellant shoved Sergeant Cole and she “went flying into

the street.” Id. at 53. She informed Appellant she was going to tase him

but when she deployed her taser, it did not make contact. Id. at 54.

          As Appellant and Officer Biricocchi scuffled, Sergeant Cole attempted

to aid her colleague. Appellant grabbed her taser and tried to pull it from

her hand.       Id. at 55-56.    She and Officer Biricocchi eventually tackled

Appellant to the ground and handcuffed him. Id. at 57-58. When she tried


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to handcuff Appellant, Sergeant Cole realized she could not bend the middle

finger on her right hand.     Id. at 59.   The finger, ultimately diagnosed as

sprained, was swollen and caused her substantial pain. Id. While she could

not pinpoint exactly when the injury occurred, she believed it happened

during her struggle to control Appellant. Id. at 61, 78.

      Appellant testified that he and a friend were walking to a convenience

store when they were approached by the officers.       Id. at 109.   Appellant

stated that he was reaching for identification at Sergeant Cole’s request

when she grabbed his arm and tried to grab his wallet.       Id. at 112. She

informed him that she wanted to search him for weapons and he said “no.”

Id. at 115.    He denied attempting to flee, saying he was trying “to move

myself from the situation.”     Id. at 116.   He attempted to leave but was

grabbed by the collar. Id. He stated he did not kick, hit or punch either

officer. Id.

      The trial court, addressing the sufficiency of evidence, determined:

      Although [Sergeant] Cole was unable to pinpoint the moment
      when her finger was sprained, [Appellant’s] actions were
      sufficient for a jury to convict him of simple assault. While
      [Appellant] denied that he purposely harmed Sergeant Cole, the
      jury, while passing upon the credibility of witnesses, is free to
      believe    all,  part,   or   none  of    the   evidence.    See
      Comm[onwealth] v. Cousar, 928 A.2d 1025, 1032-33 (Pa.
      2007); see also Comm[onwealth] v. Laird, 988 A.2d 618,
      [625] (Pa. 2010). The jury chose to believe the testimony of
      Sergeant Cole and Officer Biricocchi, and it is not the [c]ourt’s
      province to reexamine the factual determinations made by the
      jury. Therefore, the testimony presented at trial was sufficient
      for a conviction of Simple Assault.


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Trial Court Rule 1925(a) Opinion, 10/13/16, at 6.

      Based on our review of the record, we agree with the trial that the

evidence, viewed in the light most favorable to the Commonwealth as

verdict winner, supports the verdict and establishes, beyond a reasonable

doubt, that Appellant intentionally, knowingly or recklessly caused bodily

injury to Sergeant Cole. Appellant’s sufficiency claim fails.

      In his second issue, Appellant contends the trial court erred by

excluding as irrelevant the fact Appellant’s resisting arrest charge was

dismissed prior to trial.   As such, Appellant presents a challenge involving

admissibility of evidence. This Court has recognized that:

      The admissibility of evidence is within the sound discretion of the
      trial court, and we will not disturb an evidentiary ruling absent
      an abuse of that discretion. An abuse of discretion is not merely
      an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

Commonwealth v. Semenza, 127 A.3d 1, 4 (Pa. Super. 2015) (internal

citations and quotations omitted).

      The trial court explained:

      [Appellant’s counsel] is correct in stating that in order to be
      convicted for resisting arrest, the underlying arrest must be
      lawful. Comm[onwealth] v. Biagini, 655 A.2d 492, 497 (Pa.
      1995). However, the Court in Biagini stressed that physical
      resistance to an arrest, whether or not it is supported by
      probable cause, is not protected under the law. It held:

         The determination that a police officer placed an individual
         under arrest without probable cause is a legal
         determination; it is an issue to be resolved in a courtroom,

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            not on a street corner. Within a civilized society rules exist
            to resolve disputes in an orderly and peaceful manner.
            Physical resistance to a police officer is not only counter-
            productive to the orderly resolution of controversy, but it is
            also specifically prohibited by statute.           18 Pa.C.S.
            § 505(b)(1)(i). (The use of force is not justifiable to resist
            an arrest which the actor knows is being made by a peace
            officer, although the arrest is unlawful).          Therefore,
            defendants’ secondary premise, that an unlawful arrest
            justifies physical resistance, is invalid. Id. at 497-98.

Trial Court Rule 1925(a) Opinion, 10/13/16, at 7-8.

         The trial court discussed relevance under Pa.R.E. 401 and concluded

that the legality of the underlying arrest was not relevant because Appellant

was not facing a resisting arrest charge at trial. Id. at 8. The trial court

determined:

         The fact that the [resisting arrest] charge was dismissed had no
         bearing on the legality of the remaining charges. The ultimate
         issue in this case was whether [Appellant] used physical force
         against officers, which would not have been warranted
         notwithstanding the legality of the arrest. The fact did not tend
         to make the ultimate issue any more or less probable, and even
         if it was relevant, its introduction would only act to distract the
         jury’s attention to a collateral issue which had no bearing on the
         present charges.

Id. at 8-9.

         We find no abuse of discretion in the trial court’s ruling that excluded

evidence of the dismissed resisting arrest charge. Appellant’s second issue

fails.

         Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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