J-S13019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSEPH WAYNE WILSON

                            Appellant                  No. 882 WDA 2014


              Appeal from the Judgment of Sentence May 2, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011979-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 04, 2015

        Appellant, Joseph Wayne Wilson, appeals from the May 2, 2014

aggregate judgment of sentence of one year’s probation, imposed after he

was found guilty of one count each of obstructing the administration of law

and resisting arrest.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

                    On August 14, 2013, at approximately 10:00
              p.m., Sergeant Matt Lucas was patrolling the area of
              Lincoln and North Jackson Avenues in Bellevue
              Borough when he heard what sounded to him like
              angry screaming. He parked and exited his vehicle
              to investigate the scream. As soon as he exited his
              vehicle, he was able to identify the source of the
              sound as a female juvenile, who was screaming
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1
    18 Pa.C.S.A. §§ 5101 and 5104, respectively.
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          profanities. The juvenile was known to the sergeant,
          and she was walking towards his location with
          [Appellant]. Sergeant Lucas was concerned about
          the juvenile’s behavior because of the presence of
          many young children, who were leaving a church
          festival in the area.

                [Appellant] and the juvenile continued walking
          in the direction of Sergeant Lucas and his vehicle,
          and Sergeant Lucas intercepted them as they
          passed. The officer informed the juvenile, whom he
          knew from being a resource officer at the local high
          school, that she could not scream profanities as she
          was doing and that she should stop her behavior and
          go home. The sergeant believed that she had heard
          and understood him, and the juvenile began walking
          away. When the juvenile was approximately five (5)
          feet away from the officer, she turned and screamed
          “f[**]k you” toward the officer, drawing everyone’s
          attention. At that point, Sergeant Lucas took the
          juvenile by the arm, informed her that she was
          under arrest, and began walking her to his patrol
          car. The juvenile was being arrested for disorderly
          conduct.

                 As Sergeant Lucas was escorting the juvenile
          to his vehicle, [Appellant], who placed himself at the
          sergeant’s shoulder within the sergeant’s personal
          space, began repeatedly trying to talk Sergeant
          Lucas out of arresting the juvenile. Sergeant Lucas
          described that [Appellant] was “very, very close” to
          him. As [Appellant] continued to tell the sergeant to
          let the juvenile go, even after the officer told
          [Appellant] to leave at least four (4) times, the
          juvenile began resisting by pulling away from the
          sergeant, screaming and kicking. Sergeant Lucas,
          who was by himself throughout this incident, was
          finally able to get the juvenile into handcuffs and
          partially into his police cruiser.   Throughout this
          struggle with the juvenile, [Appellant] was in close
          proximity to the officer, so close that the officer
          could push him away at times and so close that
          [Appellant] trapped the officer between himself and
          the police vehicle.

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                  [Appellant]’s actions took the sergeant’s
            attention away from the juvenile with whom he was
            struggling and caused the sergeant to place his
            attention on [Appellant], whose intentions were
            unclear. In fact, the sergeant testified that he was
            worried that the [Appellant] was going to jump on
            top of him, get aggressive, incite others to
            aggressive acts, act on ill intentions, or put his hands
            on the officer to take something from his belt or hurt
            the officer.

                   At this point, because he was still by himself
            and he was unsure what [Appellant] was going to do
            to further interfere with the juvenile’s arrest,
            Sergeant Lucas advised [Appellant] that he was
            under arrest and grabbed his wrist, which was right
            in the officer’s face. Upon grabbing [Appellant]’s
            arm, [Appellant] began to resist, pulling away from
            the officer and, in fact, getting his hand free of the
            officer’s grip. Sergeant Lucas grabbed [Appellant]’s
            wrist again and was forced to try to take him to the
            ground. Back-up support then arrived, and it took
            two (2) officers to take [Appellant] to the ground and
            three (3) officers to get [Appellant] into custody.

                  [Appellant] also testified in his own defense
            during the trial.      During his testimony, he
            acknowledged that he did not listen to the officer’s
            instructions and that he advanced on the officer
            during the arrest of the juvenile. He also testified
            that he “blacked out” at some point during the
            incident and that there were several points that he
            could not remember. Importantly, [Appellant] could
            not remember how close he was to the officer during
            the incident.

Trial Court Opinion, 10/24/14, at 2-4 (internal citations omitted).




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        On December 5, 2013, the Commonwealth filed an information

charging Appellant with the above-mentioned offenses, as well as one count

of selling or furnishing alcohol to a minor.2         On May 2, 2014, Appellant

proceeded to a one-day bench trial, at the conclusion of which, the trial

court found Appellant guilty of obstructing the administration of law and

resisting arrest.    The furnishing alcohol to a minor charge was withdrawn.

That same day, the trial court imposed a sentence of six months’ probation

on each count, to run consecutively.           On May 30, 2014, Appellant filed a

timely notice of appeal.3

        On appeal, Appellant raises the following two issues.

              I.     Did the trial court err when it found [Appellant]
                     guilty of obstruction of administration of law
                     where the evidence was insufficient to prove,
                     beyond a reasonable doubt, that [Appellant]
                     intentionally obstructed, impaired, or perverted
                     the administration of law, by way of force,
                     violence, physical interference or obstacle, but
                     his actions merely avoided compliance with law
                     without      affirmative    interference     with
                     governmental functions?

              II.    Did the trial court err when it found [Appellant]
                     guilty of resisting arrest where the evidence
                     was legally insufficient to prove, beyond a
                     reasonable doubt, that [Appellant] created a
                     substantial risk of bodily injury or employed


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2
    18 Pa.C.S.A. § 6310.1(a).
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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                    means justifying or requiring substantial force
                    to overcome the resistance?

Appellant’s Brief at 4.

      Both of Appellant’s issues on appeal challenge the sufficiency of the

Commonwealth’s evidence. We begin by noting our well-settled standard of

review. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted). “The Commonwealth can meet its burden by wholly circumstantial

evidence and 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.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).        “[T]he 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.” Id. (citation omitted). “Because

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

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119, 126      (Pa. 2013) (citation omitted), cert. denied, Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

      Instantly, Appellant was convicted of obstructing the administration of

law and resisting arrest. The statutes for those offenses provide as follows.

              § 5101. Obstructing administration of law or
              other governmental function

              A person commits a misdemeanor of the second
              degree if he intentionally obstructs, impairs or
              perverts the administration of law or other
              governmental function by force, violence, physical
              interference or obstacle, breach of official duty, or
              any other unlawful act, except that this section does
              not apply to flight by a person charged with crime,
              refusal to submit to arrest, failure to perform a legal
              duty other than an official duty, or any other means
              of avoiding compliance with law without affirmative
              interference with governmental functions.

18 Pa.C.S.A. § 5101.

              § 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.

Id. § 5104.

      We first address Appellant’s argument regarding his conviction for

obstructing administration of law.       Specifically, Appellant avers that the

Commonwealth failed to provide sufficient evidence that “[his] actions were


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done with the intent to obstruct, impair, or pervert Sergeant Lucas from

effectuating the arrest of [the female juvenile].”      Appellant’s Brief at 15.

The   Commonwealth        counters   that   Appellant    committed     “physical

interference … as the sergeant tried to perform his official function and

arrest [the female juvenile.]” Commonwealth’s Brief at 10.

                   Evidence that one has physically impeded a
            law enforcement officer from administering the law
            has been held sufficient to sustain a conviction under
            § 5101. See Commonwealth v. Conception, 657
            A.2d 1298 ([Pa. Super.] 1995) (appellant blocked
            door of her apartment to prevent the police from
            entering to apprehend fugitive who was hiding in the
            shower stall); Commonwealth v. Reed, 851 A.2d
            958, 963–64 (Pa. Super. 2004) (defendant
            attempted to obstruct the pathway of a uniformed
            police officer in the common area of an apartment
            house after the officer had exclaimed to the
            defendant: “Just let me get by and do my job.”);
            Commonwealth v. Love, 896 A.2d 1276, 1284–
            1285 (Pa. Super. 2006) (defendant, in an attempt to
            interfere with the law enforcement officer who was
            escorting his wife from the courtroom, placed his
            arm across court officer’s chest and attempted to
            push him).

                  The interference need not involve physical
            contact with the government official as he performs
            his duties. Commonwealth v. Scarpone, 634 A.2d
            1109,     1113   ([Pa.]   1993).        See    also
            Commonwealth v. Mastrangelo, 414 A.2d 54
            ([Pa.] 1980), (upholding a § 5101 conviction based
            on the defendant’s verbal abuse of a parking
            enforcement officer upon receiving a parking ticket,
            which then deterred the officer from subsequently
            performing the job).

Commonwealth v. Johnson, 100 A.3d 207, 214-215 (Pa. Super. 2014)

(parallel citations omitted).

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      In this case, Sergeant Lucas testified that while he was attempting to

place the female juvenile in his police car, Appellant immediately attempted

to interfere with his arresting her.    N.T., 5/2/14, at 16.   Specifically, he

testified that Appellant desperately pleaded with him not to arrest the

juvenile.   Id. at 16-17.   Sergeant Lucas further testified that Appellant’s

conduct then escalated beyond mere pleas when he physically used his body

to obstruct Sergeant Lucas’s efforts to arrest the female juvenile by

“trapping” Sergeant Lucas between Appellant and his police cruiser. Id. at

19. Appellant argues that the extent of his interference was videotaping the

incident from two feet away. Appellant’s Brief at 16. While Sergeant Lucas

testified that Appellant did pull out a mobile phone during the incident, and

that Appellant told him he was videotaping the incident, he also stated that

Appellant did not remain two feet away, but rather placed Sergeant Lucas

between Appellant and the police cruiser. N.T., 5/2/14, at 18-19. The trial

court, as the factfinder, was permitted to reject this argument, and believe

the portion of Sergeant Lucas’s testimony that Appellant’s actions went

beyond mere pleading and videotaping. See Watley, supra. In our view,

this is sufficient to sustain a conviction under Section 5101 because it

“physically impeded a law enforcement officer from administering the law[.]”

Conception, supra. As Appellant physically interfered by boxing Sergeant

Lucas between Appellant and his vehicle, in an effort to block the completion

of the arrest, the trial court was permitted to infer Appellant’s intent. Based


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on these considerations, Appellant’s first issue on appeal does not merit

relief.

          In his second issue, Appellant avers that the Commonwealth failed to

present sufficient evidence for the charge of resisting arrest.    Specifically,

Appellant argues the Commonwealth failed to show that his actions “created

a substantial risk of bodily injury to the police officers effectuating the

arrest.” Appellant’s Brief at 21.

          As this Court has previously noted, “Section 5104 does not require

evidence of serious bodily injury, nor does it require actual injury. Merely

exposing another to the risk of such injury is sufficient to sustain a

conviction under Section 5104.” In the Interest of Woodford, 616 A.2d

641, 644 (Pa. Super. 1992); see also Commonwealth v. Butler, 512 A.2d

667, 673 (Pa. Super. 1986) (stating that for a conviction for resisting arrest,

“[t]he fact that the officer was not injured is of no consequence[]”). It is

also true that Section 5104 does not require physical contact.      See, e.g.,

Commonwealth v. Jackson, 907 A.2d 540, 546 (Pa. Super. 2006) (stating

that a conviction under Section 5104 was proper where the defendant

“continued to resist attempts to subdue him by spitting blood and saliva at

[the officer]”), appeal denied, 932 A.2d 75 (Pa. 2007).

          In this case, the trial court found the Commonwealth satisfied this

element based on the following.

                    In this case,      the evidence showed that
               [Appellant] initially    resisted Sergeant Lucas’

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               attempts to take him into custody by pulling his arm
               out of the officer’s grasp and pulling away from the
               officer. [Appellant] was also refusing to place his
               hands behind his back, and he was flailing his arms
               in a defending posture.          Due to [Appellant]’s
               struggles, he was required to be taken to the ground
               in order to be subdued. It took at least two (2)
               officers to take [Appellant] to the ground. As he was
               laying on the ground, [Appellant] laid on top of his
               hands, refusing to put them behind him to be placed
               into handcuffs.       Force was required to pull
               [Appellant]’s hands out from underneath him. It
               ultimately took the efforts of three (3) police officers
               to get [Appellant] handcuffed.

Trial Court Opinion, 10/24/14, at 10.

        Upon    careful    review   of the   certified   record,    we   conclude     the

Commonwealth met its burden.              As the trial court notes, Officer James

Niglio, who provided backup to Sergeant Lucas, testified that Appellant was

actively resisting, in part, because “[h]is arms were flailing, in a … defending

posture.”      N.T., 5/2/14, at 46.       Furthermore, force was required to get

Appellant to get his arms behind his back for the purpose of handcuffing

them. Id. at 44. In fact, the force of three police officers was required in

order    to    secure     Appellant’s   compliance.      Id.       In   our   view,   the

Commonwealth’s evidence was sufficient to show that Appellant’s defensive

behavior and actions constituted a substantial risk of bodily injury to

another. See Jackson, supra; Woodward, supra; Butler, supra. Based

on these considerations, we conclude Appellant’s sufficiency challenge does

not warrant relief. See, e.g., Commonwealth v. Clark, 761 A.2d 190, 193

(Pa. Super. 2000) (stating that the Commonwealth provided sufficient

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evidence to sustain a Section 5104 conviction where the defendant “pulled

his hand away from the officer and put his hands … up in a fighting stance[,

gave chase, and t]he three officers attempting to effect the arrest struggled

with Appellant on the ground[]”), appeal denied, 771 A.2d 1278 (Pa. 2001).

     Based on the foregoing, we conclude both of Appellant’s issues on

appeal are devoid of merit.     Accordingly, the trial court’s May 2, 2014

judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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