J-S27003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD ERIC BOWMAN-DIX,

                            Appellant                No. 1070 MDA 2015


             Appeal from the Judgment of Sentence April 20, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004378-2014


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 14, 2016

       Appellant, Richard Eric Bowman-Dix, appeals from the judgment of

sentence entered in the Court of Common Pleas of York County on April 20,

2015.1 We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   To the extent Appellant purports to appeal from the June 12, 2015 order
denying his post-sentence motion, we note that in a criminal context, an
appeal properly lies from the judgment of sentence, not an order denying
post-sentence motions. See Commonwealth v. Dreves, 839 A.2d 1122,
1125 n. 1 (Pa. Super. 2003) (en banc) (in a criminal action, appeal properly
lies from the judgment of sentence made final by the denial of a post-
sentence motion). The caption correctly reflects that the appeal is taken
from the April 20, 2015 judgment of sentence.
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             In the late evening hours of May 24, [2014], Corporal
      Sean Taylor of the Pennsylvania State Police came into contact
      with a 2000 Audi A6 during a routine stop at a DUI checkpoint
      on the I-83 Business Loop in York City. When approached by
      Corporal Taylor, the driver, later identified as the Appellant,
      rolled his window down approximately 2 inches and refused to
      open it further.    Corporal Taylor struggled to see into the
      vehicle.    Corporal Taylor opened the driver side door and
      instructed the Appellant to exit the vehicle. When the Appellant
      refused to comply, Corporal Taylor reached into the vehicle and
      attempted to unbuckle the Appellant’s seatbelt in order to
      forcibly remove him. The Appellant used his elbow to push
      Corporal Taylor out of the vehicle.

            Several other troopers surrounded the vehicle. Trooper
      Jeremy Corrie utilized his Taser to drive stun the Appellant in his
      thigh. A struggle ensued and Trooper Corrie deployed Taser
      probes into the Appellant’s torso.       The Appellant’s brother,
      seated in the passenger seat, reached over and removed the
      probes from the Appellant. Trooper Timothy Schwartz then
      deployed his Taser probes into the Appellant’s torso.          The
      troopers forcibly removed the Appellant from the vehicle and
      took him into custody.

             On March 18, 2015, the [trial court] denied the Appellant’s
      Omnibus Pretrial Motion to Suppress. A jury trial was held from
      March 18 to March 20, 2015. The jury found the Appellant guilty
      of resisting arrest1 and disorderly conduct.2 The jury found the
      Appellant not guilty of disarming a law enforcement officer.3 On
      June 12, 2015, the [trial court] denied the Appellant’s Post-
      Sentence Motion requesting a judgment of acquittal or a new
      trial.
            1
                18 Pa.C.S.A. 5104.
            2
                18 Pa.C.S.A. 5503(a)(4).
            3
                18 Pa.C.S.A. 5104.0(a)(1).

Trial Court Opinion, 9/1/15, at 1-2 (internal citations omitted).

      Appellant filed a timely notice of appeal on June 22, 2015. Both the

trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

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      1.     Whether the verdict was against the weight of the
      evidence to the point that the verdict shocks one’s sense of
      justice?

      2.     Whether the Commonwealth’s evidence supported the
      jury’s verdicts finding the Appellant guilty of Resisting Arrest and
      Disorderly Conduct?

      3.   Whether the trial court erred in denying the Appellant’s
      Omnibus Pretrial Motion?

Appellant’s Brief at 5.

      When an appellant raises both a sufficiency-of-the-evidence issue and

a suppression issue, we address the sufficiency of the evidence supporting

the conviction first, and we do so without a diminished record:

      [W]e are called upon to consider all of the testimony that was
      presented to the jury during the trial, without consideration as to
      the admissibility of that evidence. The question of sufficiency is
      not assessed upon a diminished record.          Where improperly
      admitted evidence has been allowed to be considered by the
      jury, its subsequent deletion does not justify a finding of
      insufficient evidence. The remedy in such a case is the grant of
      a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 431–432 (Pa. 2004) (emphasis

in original). Thus, we begin by addressing the sufficiency of the evidence, as

“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has

been overturned because of insufficient evidence.”        Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).       Accordingly, we

address Appellant’s second issue first.

      In it, Appellant argues that the evidence presented at trial was not

sufficient to support the jury’s verdict finding Appellant guilty of resisting


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arrest and disorderly conduct.      Appellant’s Brief at 14.   Appellant further

explains his position as follows:

      Specifically, [Appellant] contends that the Commonwealth
      presented insufficient evidence that [Appellant] created a
      substantial risk of bodily injury to the state police troopers, or
      employed means justifying or requiring substantial force by the
      police to overcome the any [sic] resistance offered by
      [Appellant], or that [Appellant], intending to cause a public
      inconvenience, annoyance or alarm, created an illegitimate
      hazardous or physically offensive condition and continued in this
      unlawful conduct after reasonable warning to stop.

Id.

      The standard for evaluating sufficiency claims is as follows:

             The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder[’s]. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder 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.

Commonwealth v. Estepp, 17 A.3d 939, 943–944 (Pa. Super. 2011).




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      As noted, Appellant argues that the evidence was insufficient to

establish resisting arrest and disorderly conduct. Those crimes are defined

in the Crimes Code 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.

18 Pa.C.S. § 5104.

      § 5503. Disorderly conduct

      (a) Offense defined.--A person is guilty of disorderly conduct
      if, with intent to cause public inconvenience, annoyance or
      alarm, or recklessly creating a risk thereof, he:

                                    * * *

            (4) creates a hazardous or physically offensive
            condition by any act which serves no legitimate
            purpose of the actor.

                                    * * *

      (c) Definition.--As used in this section the word “public” means
      affecting or likely to affect persons in a place to which the public
      or a substantial group has access; among the places included
      are highways, transport facilities, schools, prisons, apartment
      houses, places of business or amusement, any neighborhood, or
      any premises which are open to the public.

18 Pa.C.S. § 5503.

      With regard to Appellant’s resisting arrest conviction, the evidence

presented at trial reflects the following series of events that occurred on the


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evening of May 24, 2014. Corporal Sean Taylor testified that a checkpoint

was established on the I-83 Business Loop in York County, near York

hospital.   N.T., 3/18/15, at 116-118.      Appellant drove into the DUI

checkpoint and was approached by Corporal Taylor. Id. at 121. Corporal

Taylor testified that the windows of Appellant’s car were tinted, and the

driver’s side window was rolled down approximately two to three inches. Id.

Because Corporal Taylor could not see into the car well, he directed

Appellant to roll down his window. Id. Appellant refused to wind down the

window. Id. As a result, Corporal Taylor opened Appellant’s car door. Id.

Appellant asserted that Corporal Taylor was not allowed to open Appellant’s

car door, and proceeded to pull the door shut, pulling the door closed on

Corporal Taylor. Id.

      Corporal Taylor then directed Appellant to provide his identification.

Id. at 121. Appellant refused, claiming that he was not required to provide

the identification as directed by Corporal Taylor.   Id. at 122.    Corporal

Taylor advised Appellant that he was required to produce it because he was

at the sobriety checkpoint and directed Appellant to step out of the vehicle.

Id. at 122. In explaining why he asked Appellant to exit the car, Corporal

Taylor testified:

            What peaked [sic] my interested was his lack of
      cooperation. I worked a number of DUI checkpoints. I’ve never
      encountered anybody like this in my time as a patrolman. I deal
      with a lot of people.




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            Surprisingly, a lot of people don’t realize we do now more
      drug DUI’s than alcohol DUI’s. You can be arrested for under
      the influence – the section is under the influence of alcohol or
      controlled substance.

            So a lot of times we arrest a lot of people that are under
      the influence of prescription medicines or illegal drugs.

                                   * * *

             At this point in time I didn’t know if he was under the
      influence of a controlled substance. He wouldn’t provide me with
      identification.

           First he didn’t roll down the window, so I couldn’t do my
      DUI investigation. If he had just rolled down the window,
      handed me his ID, he would have been in and out and on his
      way.

N.T., 3/18/15, at 122-123.

      Appellant responded that he was not drunk, and as a result, did not

need to step out of the vehicle. N.T., 3/18/15, at 122-123. Corporal Taylor

testified that he asked Appellant to exit the vehicle several times, but

Appellant consistently refused to do so.      Id. at 125.     In response to

Appellant’s assertion that he was not drunk, Corporal Taylor testified that he

told Appellant that he did not think that Appellant was drunk, but because

Appellant was acting erratic and irrational, he needed Appellant to get out of

the vehicle so that he could look at Appellant’s eyes for purposes of

continuing his investigation. Id. at 125. Appellant continued to refuse to

exit the vehicle. Id. Corporal Taylor asked Appellant if there was anything

that he could do to get Appellant out of the vehicle before he would be

required to use force to remove Appellant from the vehicle. Id. at 125-126.

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After receiving no response from Appellant, Corporal Taylor reached into the

car to unbuckle Appellant’s seatbelt.          Id. at 127. At that point, Appellant

used his elbow to push Corporal Taylor out of the vehicle. Id. at 127.

       Upon observing the commotion, other troopers at the checkpoint

approached Appellant’s vehicle.           N.T., 3/18/15, at 128, 167-168, 182.

Appellant continued to refuse to exit the vehicle. Id. at 128-129. Because

other means of force, including pepper spray and hands-on tactics, were not

appropriate given the circumstances, Trooper Jeremy Corrie used the Taser

in “drive stun” mode2 against Appellant. Id. at 130-133. Appellant grabbed

Trooper Corrie’s Taser and attempted to pull it away from him. Id. at 133.

Trooper Corrie was able to pull away from Appellant and then proceeded to

place the Taser cartridge in the Taser and shoot the probes into Appellant.

Id. at 133-134.       At that point, Appellant’s brother, who was in the front

passenger seat, grabbed the probes and pulled them from Appellant’s chest.

Id. at 134. Another trooper at the scene, Trooper Timothy Schwartz, then

effectuated his Taser with probes on Appellant. Id. at 134. While Appellant

was under power of the Taser, Troopers Tristan Bennett and Harold Fleming
____________________________________________


2
   Corporal Taylor explained that using the Taser in this way was consistent
with using it as a pain compliance tool. In “drive stun” mode, the probes are
removed from the Taser, and the Taser is used like a stun gun and can be
placed on a specific part of the body. The individual being tased feels pain
only where the Taser is touching the individual’s body. As explained by
Corporal Taylor: “And on our use of force array, the Taser without the
probes in it is the lowest use of force other than escort techniques.” Id. at
132.



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forcibly pulled Appellant from the vehicle. Id. at 136, 183. Once out of the

vehicle and on the ground, Appellant continued to struggle against the

troopers and refused to put his arms behind his back.                Id. at 183-184.

Trooper Fleming testified that after applying a substantial amount of force,

he and Trooper Bennett were able to handcuff Appellant. Id.

       Viewed in the light most favorable to the Commonwealth, the evidence

supports the conclusion that Appellant acted with the intent of preventing a

public servant from effecting a lawful arrest3 and did so by engaging in

actions that required troopers to use “substantial force to overcome” his

resistance. 18 Pa.C.S. § 5104. Accordingly, there was sufficient evidence to

support Appellant’s conviction of resisting arrest.

       Furthermore,      the   record    reflects   evidence   sufficient   to   support

Appellant’s conviction of disorderly conduct.          Appellant’s actions created a

hazardous and physically offensive condition for the troopers, himself, and

the occupants of Appellant’s vehicle, including a young girl Appellant

identified as his niece. N.T., 3/18/15, at 125-126. Appellant’s actions also

caused a backlog of vehicles attempting to proceed through the DUI

checkpoint, thereby creating a public inconvenience. Id. at 128. As noted,

Appellant’s actions occurred in a public place: at a DUI checkpoint on the
____________________________________________


3
   We note that Appellant does not contend that this was an unlawful arrest.
In fact, Appellant concedes that “Pennsylvania State Police are granted the
authority to conduct an arrest based on a violation of a request to produc[e]
identification.” Appellant’s Brief at 16.



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Business Loop of I-83 in York County. Id. at 116-118. Thus, the evidence

supports the conclusion that Appellant acted with intent to, or recklessly

created a risk of causing a public inconvenience, annoyance or alarm, by

creating “a hazardous and physically offensive condition” by his actions

which served no legitimate purpose. 18 Pa.C.S. § 5503(a)(4). Accordingly,

we agree with the trial court’s conclusion that there was sufficient evidence

supporting Appellant’s conviction of disorderly conduct.     Thus, Appellant’s

claim lacks merit.

      Next, Appellant asserts that the trial court abused its discretion in

denying Appellant’s post-sentence motion, arguing that the jury’s verdict

finding him guilty of resisting arrest and disorderly conduct was against the

weight of the evidence. Appellant’s Brief at 9. Appellant contends that the

trial court employed the wrong standard in evaluating whether the jury’s

verdict was against the weight of the evidence by relying on the jury’s

credibility determination to avoid a weight of the evidence analysis. Id. at

12.

      With respect to a weight claim, we apply the following standards:

             A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. A trial judge
      must do more than reassess the credibility of the witnesses and

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     allege that he would not have assented to the verdict if he were
     a juror. Trial judges, in reviewing a claim that the verdict is
     against the weight of the evidence do not sit as the thirteenth
     juror. Rather, the role of the trial judge is to determine that
     notwithstanding all the facts, certain facts are so clearly of
     greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000) (citations,

footnote, and internal quotation marks omitted).

     The weight of the evidence is exclusively for the finder of fact
     who is free to believe all, part, or none of the evidence and to
     determine the credibility of the witnesses. An appellate court
     cannot substitute its judgment for that of the finder of fact.
     Thus, we may only reverse the lower court’s verdict if it is so
     contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation

omitted).

     The    Commonwealth     introduced     ample   evidence   of   Appellant’s

culpability with regard to the challenged convictions, and the jury was free

to weigh the evidence as it did.   We cannot conclude that the trial court

abused its discretion by denying Appellant’s weight challenge, and the

verdict does not shock our sense of justice. Widmer, 744 A.2d at 751–752;

Serrano, 61 A.3d at 289.

     Finally, Appellant argues that the trial court erred in denying his

omnibus pretrial motion.   Appellant’s Brief at 20.   In his omnibus pretrial

motion, Appellant asserted that he complied with the DUI checkpoint by

stopping his vehicle and lowering his driver’s side window an adequate

amount to interact with the state police, that his vehicle’s windows were not

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too darkly tinted for the state police to view the interior of his vehicle, and

that the state police violated his rights by forcefully removing him from his

vehicle without any reasonable suspicion or indicia of DUI or other criminal

offense.   Id. at 21.    As a result, Appellant avers that the additional

investigation conducted by the troopers was unwarranted. Id. at 22. Thus,

Appellant maintains, the state police violated his right to be free from

unreasonable searches and seizures. Id. at 25.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

             Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record. . . . Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, our scope of review from a suppression ruling is limited to

the evidentiary record that was created at the suppression hearing. In re

L.J., 79 A.3d 1073, 1087 (Pa. 2013).




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      The Pennsylvania Supreme Court has explained the following with

regard to sobriety checkpoints:

            Although the stopping of a motor vehicle at a sobriety
      checkpoint constitutes a seizure for constitutional purposes, such
      checkpoint stops are not per se unreasonable, and hence are not
      per se unconstitutional under either the Fourth Amendment to
      the United States Constitution or Article I, Section 8 of the
      Pennsylvania Constitution. . . . [T]he United States Supreme
      Court concluded that sobriety checkpoints do not offend the
      Fourth Amendment because they are a reasonable means of
      advancing a vital public interest, involving only a modest
      intrusion on the privacy and liberty of motorists. Similarly, we
      have held that systematic, non-discriminatory, non-arbitrary
      checkpoints do not offend the Pennsylvania Constitution.

Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa. 2008) (internal

citations omitted).

      Furthermore, 75 Pa.C.S. § 6308(b) provides:

      (b) Authority of police officer.--Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle’s registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver’s license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).

      Moreover, this Court has explained the following with regard to a

warrantless arrest:

      An officer has probable cause to make a warrantless arrest when
      the facts and circumstances within the police officer’s knowledge
      and of which the officer has reasonably trustworthy information
      are sufficient in themselves to warrant a person of reasonable
      caution in the belief that an offense has been committed by the

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      person to be arrested. Probable cause justifying a warrantless
      arrest is determined by the totality of the circumstances. . . .
      Furthermore, probable cause does not involve certainties, but
      rather the factual and practical considerations of everyday life on
      which reasonable and prudent persons act.

Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (internal

citations and quotation marks omitted). “[P]robable cause for a warrantless

arrest exists when criminality is one reasonable inference; it need not be the

only, or even the most likely, inference.” Commonwealth v. Romero, 673

A.2d 374, 377 (Pa. Super. 1996) (emphasis in original).

      Here, Appellant approached a lawful DUI checkpoint. N.T., 3/18/15, at

7.   Corporal Taylor attempted to conduct the systematic program of

checking drivers approaching the checkpoint by engaging with Appellant.

Id. at 8-10.   The evidence reflects that Appellant refused to comply with

Corporal Taylor’s requests that would allow for the minimal intended

interaction with Appellant as a driver to ensure that Appellant was not

operating the vehicle while under the influence.      Appellant’s evasive and

irrational behavior, coupled with his refusal to comply with Corporal Taylor’s

request to roll the window down or exit the vehicle, gave Corporal Taylor

reason to suspect that Appellant was under the influence of a controlled

substance and that further investigation was warranted.          Id. at 9-11.

Appellant’s subsequent actions in resisting the officers provided support for a

determination of probable cause to arrest Appellant. Accordingly, the trial

court did not err in denying Appellant’s omnibus pretrial suppression motion.


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         Judgment of sentence affirmed.

         P.J.E. Stevens joins this Memorandum.

         Judge Dubow files a Concurring Statement in which P.J.E. Stevens

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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