J-S23018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL PATRICK MCHUGH, JR.

                            Appellant                  No. 897 EDA 2015


            Appeal from the Judgment of Sentence January 2, 2015
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003037-2014


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 24, 2016

        Michael Patrick McHugh, Jr., appeals from the judgment of sentence

imposed on January 2, 2015, in the Court of Common Pleas of Lehigh

County. A jury found McHugh guilty of resisting arrest, and the trial court

found McHugh guilty of summary counts of disorderly conduct, driving while

operating privilege is suspended or revoked, and operating a vehicle without

a valid inspection.1        The trial court sentenced McHugh to a term of

incarceration of two months to 18 months less one day on the resisting



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*
    Former Justice specially assigned to the Superior Court.
1
  See 18 Pa.C.S. §§ 5104, 5503(a)(4), and 75 Pa.C.S. §§ 1543(a), 4703(a),
respectively.
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arrest charge.2       McHugh challenges the sufficiency and weight of the

evidence for his resisting arrest conviction.3 Based upon the following, we

affirm.

        The trial court fully summarized the facts and procedural history in its

Pa.R.A.P. 1925(a) opinion, and therefore there is no need to reiterate the

background of this case here.4         See Trial Court Opinion, 6/2/2015, at 1–6.

Very briefly, the charge for resisting arrest arose after police had stopped


____________________________________________


2
  The trial court initially sentenced McHugh to not less than two months nor
more than 18 months less on day imprisonment on the charge of resisting
arrest, and a consecutive six months’ imprisonment on the driving under
suspension charge. Thereafter, the trial court granted in part, and denied in
part, McHugh’s motion for reconsideration of sentence, and amended his
sentence on the driving under suspension charge to a period of
imprisonment of not less than three months nor more than six months. See
Order, 2/27/2015.
3
    Specifically, McHugh argues:

        Was there sufficient evidence to support the jury verdict that
        [McHugh] acted to create a substantial risk of bodily injury to
        the officer or employed means justifying or requiring substantial
        force to overcome his resistance?

                                           ****

        Was the jury’s verdict convicting [McHugh] of resisting arrest
        against the weight of all of the evidence as presented regarding
        [McHugh’s] alleged resistance?

McHugh’s Brief at 7.
4
  We note that McHugh complied with the trial court’s order to file a
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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McHugh’s vehicle at 2:00 a.m., on July 14, 2014, and determined that the

vehicle would have to be towed due to McHugh’s suspended license. Due to

McHugh’s conduct at the scene, McHugh was placed under arrest and in the

process the arresting police officer suffered a leg fracture.

      Our standard of review of a sufficiency claim is well settled:

      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. 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.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.


Commonwealth v. Franklin, 69 A.3d 719, 722–723 (Pa. Super. 2013)

(quotation marks and citations omitted).

      A defendant may be convicted of resisting arrest if he, “with the intent

of preventing a public servant from effecting a lawful arrest or discharging


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any other duty, ... 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.

        McHugh contends the evidence did not establish that “he acted in a

manner that threatened the officer with bodily injury or otherwise require[d]

the officer to employ substantial force to control [McHugh].” McHugh’s Brief

at 10. Specifically, McHugh asserts his actions in “tens[ing] his upper body

and draw[ing] his arms in towards his body … do not rise to the level of

creating a substantial risk of bodily injury or requiring the use of substantial

force    to   overcome   resistance.”      McHugh’s    Brief   at   15,   citing

Commonwealth v. Eberhardt, 345 A.2d 651 (Pa. Super. 1982). McHugh

claims that “[a]ny physical contact was initiated by the police officer and not

Mr. McHugh and the resulting injury suffered by Officer [Ryan] Koons

resulted from the failure in his technique in using the leg sweep which not

only brought down [McHugh] but also caused [McHugh] to fall into the

officer which dropped them both to the ground.”         McHugh’s Brief at 15.

McHugh asserts the resisting arrest statute “mandate[s] that the forcible

resistance used by the defendant involve a substantial danger to the officer.”

Id. McHugh maintains “there simply was no testimony that [he] punched,

struck, kicked, shoved or use[d] any part of his body to strike the officer or

used any amount of force justifying or requiring substantial force to be

placed upon him by the officer.” Id. at 16.


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     Officer Ryan Koons, the arresting officer, testified as follows:

     Q. Did there come a point in time when [McHugh] left the area
     of the car?

     A. Yeah, when we told him that the tow truck was on the way,
     that he was going to have to calm down and stop cursing, the
     neighbors were coming out. And, eventually, a woman was
     standing on the porch. I heard her screen door open and close.
     That’s how I noticed her. And she was up there watching this
     whole thing. That’s how loud it was getting.

                                    ****

     Q. At some point, did you tell him he could just leave?

     A. Yes, several times.

     Q. Did he eventually leave the area of the car?

     A. Not really. He stood about 15 yards from where Officer
     [Damien] Lobach was dealing with the tow truck driver. That’s
     where we told him to stand. I’m standing there watching him,
     because he’s not leaving, to cover [Officer] Lobach because he is
     dealing with the truck.

                                    ****

     Q. Okay. After the tow truck arrived, in that time period, did
     the situation with [McHugh] and his actions change at all?

     A. Yes. He escalated, got loud again. You are not taking my
     fucking car. And that’s when he started to walk towards the
     truck, and I started to walk towards him.

     Q. What did you do, if anything in response to that?

     A. As I’m approaching him, I’m telling him, turn around, put
     your hands behind your back, you are going to jail. At this
     point, he takes his arms, pulls them in like this and actually
     yells, no. And he goes and positions himself between a car and
     the curb. And he’s got his arms like this.

                                    ****

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     Q. So slow it down at this point. So you mentioned his
     behavior. I want to stop at this point in time and break it down
     a little bit. Did you tell him he’s going to be placed under arrest?

     A. Correct.
     .
     Q. Had you warned him that that might be coming?

     A. He had been warned several times.

     Q. Did his behavior persist?

     A. It did.

                                    ****

     Q. So he is coming in towards the truck and you are telling him
     he’s going to be placed under arrest?

     A. Right. When I started to walk towards him and tell him he’s
     under arrest is when he backed up and pulled his arms in and
     said, no.

     Q. You explained to him he might be placed under arrest if he
     didn’t calm down?

     A. Several times prior to him even being moved over to where
     he moved.

                                    ****

     Q. Okay. And when you are doing something like addressing
     somebody who is being a disturbance or disorderly, you know, is
     that something you handle right there on the scene?

     A. It can be. If it’s a summary violation, it can be – a ticket can
     be written and you can be released on scene.

     Q. Okay. And in this case, you advised him he’s going to be
     taken into custody. And what does he do?

     A. As I’m approaching him and telling him to turn around and
     put your hands behind your back, you are under arrest, you are

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     going, you are done, I have had enough, that’s when he started
     to back up and pull his arms in.

                                   ****

     Q. What was he doing that you had enough of?

     A. Yelling and screaming and waking up the neighbors and
     acting foolish.

     Q. So you – at this point in time you started talking about him,
     you know, saying no and closing up as you are trying –

     A. I had made the decision in my mind that he was going to jail
     at that point, that he was going to get arrested. So I walked up,
     grabbed one of his arms and I was trying to pull his arm down to
     place him under arrest. At which point, he pulled in harder,
     turned towards the car, this way, and then pushed off.


                                   ****

     Q. So he goes up against the car?

     A. Yeah. When he pushes off, we end up on the sidewalk, at
     which point I just – an outside leg trip is basically, what it is.
     It’s just like a hip toss. I put my left leg over.

     Q. Okay. So he goes over your leg?

     A. Over and down.

     Q. And then what happens next?

     A. I hear a snap. And I, actually, let go. I thought – when we
     hit the ground pretty hard, I thought it was him. And then I felt
     the pain.

                                   ****

     Q. Can you describe what injury you had?

     A. My fibula, which is the bone on the outside of your leg, this
     one here, was fractured like that.

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        Q. You are demonstrating with your hands. Just for the record,
        you are kind of using your hand to show that you –-

              THE COURT: A 45-degree angle.

              THE WITNESS: Yeah.

              ****

        Q. If Mr. McHugh had given up his hands when you requested
        that or grabbed his hands, would you have had to hip toss him?

        A. No.

        Q. If he had not pushed off against the car, would you have had
        to hip toss him?

        A. No.

        Q. If he had not been disorderly in the first place, would you
        have had to arrest him?

        A. I didn’t want to arrest him.

N.T., 12/3/2014, at 39–42, 44–47, 49, 70–72.5

        Although McHugh argues he “used no force against the officer,” 6 the

statutory language of Section 5104 “‘does not require the aggressive use of

force such as a striking or kicking of the officer.’” Commonwealth v.

McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011), citing Commonwealth
____________________________________________


5
  Officer Lobach also testified that he saw Officer Koons trying to take
McHugh into custody, saw them struggling, saw McHugh push off the van
where he was positioned, and then saw both fall to the ground. See N.T.,
12/3/2014, at 89–90, 99.
6
    McHugh’s Brief at 16.




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v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984). This Court has held that a

defendant’s passive resistance that requires police to use substantial force to

effectuate an arrest is sufficient to sustain a conviction for resisting arrest.

See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)

(evidence was sufficient to support resisting arrest conviction where

defendant, who interlocked her arms and legs with her husband, used

passive resistance requiring police to use substantial force to overcome her

resistance; officer’s efforts to restrain her left him exhausted).

       To the extent that McHugh relies on Eberhardt, supra, his reliance is

misplaced since in that case the appellant was charged on only the first

clause of Section 5014 (substantial risk of bodily injury to public servant).

See Eberhardt, 450 A.2d at 652. Here, McHugh was charged under both

clauses of Section 5104.7

       Based on our examination of the record and applying our standard of

review, we conclude Commonwealth’s evidence showed beyond a reasonable

doubt that McHugh’s conduct in response to Officer Koons’ notifying McHugh

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7
  See Criminal Complaint, 7/10/2014 (alleging “MICHAEL P MCHUGH JR with
intent of preventing a public servant, namely (OFFICER KOONS OF THE
ALLENTOWN       POLICE    DEPARTMENT),      from   effecting  a   lawful
arrest/discharging a duty, namely (DISORDERLY CONDUCT), did create a
substantial risk of bodily injury to the said public servant and/or did
employ means justifying or requiring substantial force to overcome
the resistance, in violation of Section 5104 of the PA Crimes Code.”)
(emphasis added).




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he was under arrest required Officer Koons to use substantial force to take

him into custody. Accordingly, McHugh’s sufficiency challenge warrants no

relief.

          McHugh also challenges the weight of the evidence for the charge of

resisting arrest.8     Our review of this claim is guided by the following legal

principles:

          A motion for a new trial based on a claim that the verdict is
          against the weight of the evidence is addressed to the discretion
          of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
          319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
          538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 Pa. at 319-320,
          74 A.2d at 752. Rather, “the role of the trial judge is to
          determine that ‘notwithstanding all the facts, certain clearly of
          greater weight that to ignore them or to give them equal weight
          with all the facts is to deny justice.’” Id. at 320, 744 A.2d at 752
          (citation omitted). It has often been stated that “a new trial
          should be awarded when the jury’s verdict is so contrary to the
          evidence as to shock one's sense of justice and the award of a
          new trial is imperative so that right may be given another
          opportunity to prevail.” Brown, 538 Pa. at 435, 648 A.2d at
          1189.

          An appellate court’s standard of review when presented with a
          weight of the evidence claim is distinct from the standard of
          review applied by the trial court:


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8
  A weight of the evidence claim must be raised: “(1) orally, on the record,
at any time before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). Here,
we find McHugh preserved his weight challenge by raising it orally at the
hearing on the post sentence motions. See N.T., 2/27/2015, at 6–7.



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         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Brown, 648 A.2d at 1189. Because the trial judge has
         had the opportunity to hear and see the evidence
         presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by
         the trial judge when reviewing a trial court's
         determination that the verdict is against the weight of the
         evidence. Commonwealth v. Farquharson, 467 Pa. 50,
         354 A.2d 545 (Pa. 1976). One of the least assailable
         reasons for granting or denying a new trial is the lower
         court’s conviction that the verdict was or was not against
         the weight of the evidence and that a new trial should be
         granted in the interest of justice.

      Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

      In his brief, McHugh argues:

      [W]hen all the evidence is viewed dispassionately, there simply
      was no justifiable basis for saying that he resisted arrest. He
      took no action against the officer and, while he may have been
      loud and obnoxious, he gave no reason to the officer to be
      assaulted through the leg sweep maneuver. He was convicted
      for being loud, angry, and profane but not for being assaultive or
      threatening the officers.

McHugh’s Brief at 18.

      At trial, McHugh described the events immediately prior to his arrest,

as follows:

      A. I think it was more or less a decision that [Officer Koons] had
      made to run towards me. And, like I said, he never announced
      that I was being arrested. Like I said, he ran towards me,
      striking me in the face. And then that force that was used, it
      sent my, like, body, and my head into the parked minivan.




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             And then we both collapsed to the ground right away
        instantly. And then there I was repeatedly kneed in my side and
        back.

        Q. What did you do with your hands?

        A. I think – I don’t know who put the cuffs on me. It was, like,
        very instant.

        Q. I mean, what did you do with your hands?            Were you
        punching back? Were you protecting yourself?

        A. No. I used no physical force whatsoever. I was not hitting,
        striking. I did not push.

N.T., 12/3/2014, at 115.

        Susan Carl, a “close friend” of McHugh’s and his agent under his power

of attorney,9 also testified on behalf of McHugh. She stated she had heard

the incident while she was on the phone with McHugh, who had called to ask

her to pick him up:

        I was talking to [McHugh]. He said that they were towing his
        car. He was asking the officer, please don’t tow my car. The
        officer was telling him to get moving.

        He said, okay, can I at least get my stuff out of my car before
        you tow it. At that point, the phone dropped. I heard nothing
        except (witness pounds fist) ow, (witness pounds fist) ow.
        Twice. Twice. The phone was still on. …

N.T., 12/4/2014, at 11.

        The trial court determined “[t]he verdict in this case does not shock

the conscience.”        Trial Court Opinion, 6/2/2015, at 8. The trial court

explained that the evidence showed McHugh “struggled with Officer Koons
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9
    See N.T., 12/4/2014, at 13.



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while he attempted to arrest [McHugh], which required substantial force to

overcome and caused substantial injury to Koons.”       Id.   The trial court

pointed out that McHugh “admitted to lying under oath about whether he

was driving the vehicle,” and concluded that “[t]he jury evidently chose to

believe the [Commonwealth’s] version of events that proved [McHugh’s]

guilt and, in so doing, rendered a verdict consistent with the weight of the

evidence.” Id.

     Having reviewed the trial court’s rationale in support of its decision to

reject McHugh’s weight claim, we find no abuse of discretion.      See Clay,

supra. Accordingly, we conclude McHugh’s weight challenge fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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