J-A25027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                        :     IN THE SUPERIOR COURT OF
    PENNSYLVANIA                           :          PENNSYLVANIA
                                           :
                                           :
               v.                          :
                                           :
                                           :
    JERMAINE MOORE                         :
                                           :     No. 2603 EDA 2016
                     Appellant

              Appeal from the Judgment of Sentence July 18, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002339-2016


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

MEMORANDUM BY STEVENS, P.J.E.:                     FILED NOVEMBER 14, 2017

       Appellant, Jermaine Moore, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County, which, sitting

as finder of fact at Appellant’s bench trial, found him guilty of Resisting Arrest,

18 Pa.C.S. § 5104, infra. Sentenced to six to twelve months’ incarceration

plus one year’s reporting probation, Appellant challenges the sufficiency of the

evidence supporting his conviction.            For its part, the Commonwealth

recommends that this Court vacate judgment of sentence, as it concedes the

evidence failed to establish a necessary element of the resisting arrest offense.

We reverse.

       The issue before us arises from an incident occurring on the afternoon

of January 16, 2016, inside the concourse at Philadelphia’s Suburban Station.

At approximately 3:45 p.m., a SEPTA Police Officer believed he saw Appellant


____________________________________
*    Former Justice specially assigned to the Superior Court.
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and a woman exchange money for an unknown object on stairwell leading to

the street level.   Suspecting a drug purchase was in progress, the officer

stopped Appellant and asked him for identification. When Appellant said he

did not carry any, the officer commenced a weapons frisk.

      At that point, the officer placed a handcuff on Appellant’s wrist to better

contain him during the frisk, but Appellant broke free and ran. The officer

pursued and eventually grabbed Appellant, who began spinning and flailing

his arms wildly, striking the officer in the head. The officer would later testify

at Appellant’s bench trial that he was unsure whether Appellant was trying to

land a blow or just spin out of his coat, and he admitted his hood had covered

his eyes when he felt the blow to his head. N.T. 7/6/16 at 14. Eventually,

the officer pepper sprayed Appellant, handcuffed him, and completed the frisk,

finding no weapons, drugs, or money on Appellant’s person.

      Appellant was charged with Aggravated Assault, Simple Assault, and

Resisting Arrest. On July 6, 2016, Appellant proceeded to a non-jury trial and

was found guilty of resisting arrest.           With the    agreement of the

Commonwealth, the court granted judgment of acquittal on the assault

charges. On July 18, 2016, the court imposed sentence, as noted above. This

timely appeal followed.

      Appellant presents the following question for our review:

      WAS NOT APPELLANT ERRONEOUSLY CONVICTED OF
      RESISTING ARREST, 18 PA.C.S.A. § 5104, AS THE
      COMMONWEALTH FAILED TO PROVE AN ESSENTIAL
      ELEMENT OF THAT OFFENSE, NAMELY, THAT THE
      UNDERLYING ARREST WAS LAWFUL, AND APPELLANT’S

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      MERELY EVASIVE CONDUCT DID NOT FALL WITHIN THE
      AMBIT OF THE STATUTE?

Brief of Appellant at 3.

      Our standard of review for a sufficiency of the evidence challenge is well-

established:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most
      favorable to the Commonwealth as the verdict winner, and accept
      as true all evidence and all reasonable inferences therefrom upon
      which, if believed, the fact finder properly could have based its
      verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)

(citation omitted).

      Pursuant to Section 5104 of the Crimes Code, Resisting Arrest:

      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.

      Appellant contends the evidence was insufficient to support his Resisting

Arrest conviction where the Commonwealth failed to prove that his underlying

arrest against which he resisted was lawful. We agree.

      When the officer first frisked and handcuffed Appellant, he did so without

possessing either probable cause to support an arrest on drug charges or

reasonable grounds to belief Appellant possessed a weapon. Specifically, at



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Appellant’s trial, the officer admitted that Appellant and the woman exchanged

what “could have been anything” that afternoon at the train station, N.T. at

20, and there was no testimony that either secreted the objects in a suspicious

manner. The officer was unable to discern “who was exchanging what” and

conceded on cross-examination that it could have been a stick of gum. N.T.

at 12. Nor was there testimony that the exchange took place in a known high

drug-crime setting or that the officer had specialized training or experience

that allowed him to reasonably conclude he had probably witnessed a drug

transaction. Compare Commonwealth v. Thompson, 985 A.2d 928 (Pa.

2009) (holding probable cause existed to support warrantless arrest and

search where specifically-trained and experienced narcotics officer observed

exchange of money for unknown object, without any other suspicious

behavior, in area he knew to be a high drug-crime area).

      Likewise, evidence was lacking to support a weapons frisk, as the officer

failed to articulate any particularized reason to believe Appellant possessed a

weapon or posed a danger to the officer. 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).

      On this issue, the Commonwealth concurs with Appellant that his

resisting arrest conviction must be vacated under circumstances invalidating

Appellant’s arrest. Finding no basis to support the lower court’s finding that

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Appellant’s underlying arrest was lawful, we agree with Appellant and the

Commonwealth that vacating judgment of sentence is required.1

       Judgment of sentence is reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




____________________________________________


1 In its Pa.R.A.P. 1925(a) Opinion, the trial court asks this Court to affirm
judgment of sentence on precedent that an unlawful arrest does not excuse
an assault upon an arresting officer. Such precedent recognizing grounds to
charge for other crimes committed while resisting an unlawful arrest is
inapposite to the issue before us, as the only conviction before us is for
resisting arrest, which we vacate for elemental reasons specific to the resisting
arrest statute. Indeed, indicative of the Commonwealth’s appreciation that
an arrestee’s assaultive conduct during an unlawful arrest is not excused as a
matter of law is that Appellant faced assault charges for his conduct during
the arrest, although, at trial, he was acquitted of such charges under the facts.
       In addition, we also find the present matter to be factually
distinguishable from other decisional law, cited by the trial court, holding that
resisting a lawful arrest effected for an earlier assault committed during an
unlawful arrest will support a charge for resisting arrest. Here, there was no
evidence of a temporally distinct resistance by Appellant to a subsequent,
lawful arrest based on probable cause of prior assaultive behavior. Instead,
Appellant’s resistant conduct occurred during the officer’s ongoing attempt to
subdue and handcuff Appellant without probable cause of drug and/or weapon
possession.

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