J-S32043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
DEREK LEE ROYSTER,                          :
                                            :
                   Appellant                :           No. 181 WDA 2015

      Appeal from the Judgment of Sentence entered on January 15, 2015
                in the Court of Common Pleas of Fayette County,
                 Criminal Division, No. CP-26-CR-0000267-2014

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 03, 2015

        Derek Lee Royster (“Royster”) appeals from the judgment of sentence

imposed following his conviction of disorderly conduct, graded as a third-

degree misdemeanor (hereinafter “disorderly conduct - M3”), and resisting

arrest.1 We affirm.

        The trial court summarized the relevant facts as follows:

              On January 20, 2014, a commuter bus operated by James
        Thomas [“Thomas”] of Fayette Area Coordinated Transportation
        (“FACT”) was making a routine stop at the White Swan
        Apartments in Uniontown around 2:00 p.m. Upon making the
        stop, [] Thomas encountered [Royster] waiting for the bus.
        About a week prior to January 20, [Royster had] boarded []
        Thomas’[s] FACT bus and was “playing his radio as loud as it
        would go” with no headphones.       [Royster] did not initially
        comply with [] Thomas’[s] request to turn off the music, and
        instead, told Thomas to, “Just move the bus.”       [Royster]
        continued to aggravate the situation by exchanging words with



1
    18 Pa.C.S.A. §§ 5503(a)(1) and (b), 5104.
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      [] Thomas when Thomas exited the bus at the end of his shift,
      prompting [] Thomas to write an incident report.

            Based on this prior incident, Thomas advised [Royster] on
      January 20 that he was willing to give him a second chance.
      [Royster] responded, “l don’t want to hear anything you have to
      say. Just move the bus.” Thomas then replied that [Royster]
      needed to exit the bus or Thomas was going to call the police.
      [Royster] refused to remove himself from the bus[,] so Thomas
      called the police for assistance[, and pulled the bus to the side of
      the roadway].

             Arriving on scene were Officer [John] Kauer [“Officer
      Kauer,” as well as Officer] Defoor and Chief Cox of the
      Uniontown Police Department. Officer Kauer entered the bus to
      speak with [Royster] about what had transpired so far. As the
      officer walked towards the back of the bus, [Royster] stood up,
      pointed, and said he wanted the bus moved. Despite Officer
      Kauer’s attempts to de-escalate the situation, [Royster]
      repeatedly demanded to move the bus and was being “loud” and
      “combative.” Officer Kauer became concerned [regarding] some
      elderly bus passengers who appeared visibly upset by
      [Royster’s] behavior.

             At this time, Officer Kauer advised [Royster that] he was
      placing him under arrest for disorderly conduct.             Again,
      [Royster] refused to comply with [the] officer[’s] instruction, and
      grabbed onto the support bar located near the seats. [Royster]
      “refused to let go of the bar” and was struggling with police and
      yelling. Chief Cox and Officer Defoor had now entered the bus
      to assist Officer Kauer in securing [Royster]. All three police
      officers were trying to get [Royster’s] hands loose and placed
      behind his back, but he “continued to struggle.” Finally, after a
      “considerable amount of time,” the three officers were able to
      secure [Royster] and remove him from the bus.

            [Royster] was charged with three counts: resisting arrest,
      false identification to law enforcement, and disorderly conduct
      [- M3].     A jury trial was held before th[e trial c]ourt on
      December 11-12, 2014, and [Royster] was found guilty on all
      counts except [] false identification.

Trial Court Opinion, 3/9/15, at 2-3 (citations to record omitted).



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      On January 15, 2015, the trial court sentenced Royster to a two-year

period of probation, and imposed fines and costs. Royster did not file any

post-sentence motions.

      Royster timely filed a Notice of Appeal.    In response, the trial court

ordered Royster to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.     After Royster timely filed a Concise Statement,

the trial court issued an Opinion.

      Royster presents the following issue for our review:      “Whether the

evidence was legally and factually insufficient to prove that [Royster] was

guilty of resisting arrest and disorderly conduct?”   Brief for Appellant at 8

(capitalization omitted).

      Royster argues that the Commonwealth failed to present sufficient

evidence for the jury to properly convict him of disorderly conduct - M3, and

resisting arrest. Id. at 17-18.2 Royster contends that his conduct did not

meet the elements and mens rea necessary to convict him of disorderly

conduct - M3 because “the Commonwealth [did not] establish that his intent

was to cause public inconvenience, annoyance or alarm.”       Id. at 18; see

also 18 Pa.C.S.A. § 5503(a)(1) and (b).          Royster further asserts that

because no valid arrest for disorderly conduct could be made, his conviction


2
  We observe that Royster includes in his Argument section case citations
that pertain to weight of the evidence claims. See Brief for Appellant at 14-
16. However, the sole issue identified in his Statement of Questions
Involved section, and his Rule 1925(b) Concise Statement, is a sufficiency of
the evidence challenge, not a weight of the evidence challenge.

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of resisting arrest is therefore also improper. Brief for Appellant at 17-18.

In any event, according to Royster, his resisting arrest conviction is not

supported by sufficient evidence because “there was no evidence presented

that [he] created a substantial risk of bodily injury to the police.” Id. at 18.

      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, and all reasonable inferences drawn

therefrom, there is sufficient evidence to enable the fact-finder to find every

element of the offense beyond a reasonable doubt.          Commonwealth v.

Thompson, 922 A.2d 926, 928 (Pa. Super. 2007). In applying this test, we

may not weigh the evidence and substitute our judgment for that of the fact-

finder. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).

Additionally, “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.” Id. at 40 (citation omitted).

      In order to sustain a conviction for resisting arrest under section 5104,

the Commonwealth must establish that a defendant intended to prevent an

officer from effectuating a lawful arrest or discharging any other duty, and

either that the defendant (1) created a substantial risk of bodily injury to an

officer or anyone else; or (2) employed means of resistance that justified or

required substantial force to overcome the resistance. 18 Pa.C.S.A. § 5104.

The Crimes Code provides that “[a] person is guilty of disorderly conduct



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[- M3] if, with intent to cause public inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, he … engages in fighting or threatening, or

in violent or tumultuous behavior[,]” and “the intent of the actor [wa]s to

cause substantial harm or serious inconvenience, or if he persist[ed] in

disorderly conduct after reasonable warning or request to desist.”         Id.

§ 5503(a)(1) and (b).

      Here, the record reflects that Royster refused to exit the FACT bus

despite Thomas’s repeated requests.        N.T., 12/11/14, at 19-20.   Thomas

testified that even after he had stopped the bus and advised Royster that he

had called the police, Royster insisted that he would not leave. Id. at 20.

When the police arrived, there were still several passengers seated on the

bus who, according to Thomas, were “irritated” by the delay caused by

Royster. Id.

      Officer Kauer testified that when he boarded the bus to speak with

Royster, Royster was standing up, demanding that someone move the bus,

and was “loud” and “combative.” Id. at 28-29. Officer Kauer stated that he

repeatedly had attempted to de-escalate the situation and calm Royster;

however, Royster refused to exit the bus, and continued to demand that it

be moved. Id. at 29-30, 32. Offer Kauer even offered to drive Royster to

wherever he needed to go, but Royster was unrelenting. Id. at 30. Royster

also refused to sit down at Officer Kauer’s request, and refused to provide

the officer proper identification.    Id. at 30-31.   Moreover, Officer Kauer



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testified that Royster’s unruly behavior was alarming to a point whereby

some of the elderly passengers on the bus were becoming “visibly upset.”

Id. at 30. At this point, Officer Kauer advised Royster that he was under

arrest for disorderly conduct. Id. at 33, 36. Officer Kauer described what

transpired thereafter:

       [Royster] grabbed on – there is a bar there …. [H]e grabs the
       bar and he refuses to let go of the bar, and he is tussling with
       us[, i.e., Officer Kauer and the two back-up officers on the bus],
       and he is yelling something. We are trying to get his hands
       loose and trying to get his hands behind his back to secure him,
       and he just continued to struggle with us.

Id. at 33. Officer Kauer testified that it took the efforts of all three officers

to place Royster in handcuffs.    Id.    Officer Kauer stated that “[i]t took a

considerable amount of time [to secure Royster], … a lot more than l am

accustomed to.” Id.

       First, regarding Royster’s conviction of disorderly conduct - M3, the

above facts presented at trial provided sufficient evidence for the jury to

find, beyond a reasonable doubt, that Royster “recklessly creat[ed] a risk” of

“caus[ing] public inconvenience, annoyance or alarm” by “engag[ing] in …

tumultuous behavior[,]” and “he persist[ed] in disorderly conduct after

reasonable warning or request to desist.”      18 Pa.C.S.A. § 5503(a)(1) and

(b).   The evidence reflects that Royster’s tumultuous and unruly behavior

caused public inconvenience and alarm to the other passengers on the bus,

and he persisted with his “loud” and “combative” conduct despite Officer

Kauer’s repeated attempts to diffuse the situation.      See Thompson, 922


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A.2d at 929 (upholding the defendant’s conviction of disorderly conduct -

M3, where she “willfully created a serious inconvenience at the parking

garage and made unreasonable noise after the officers attempted to diffuse

the situation.”); Commonwealth v. Schwartz, 615 A.2d 350, 361 (Pa.

Super. 1992) (affirming the defendant’s conviction for disorderly conduct -

M3, where he had continued to scream at police and the victim, despite the

officer’s warning to be quiet); see also In the Interest of R.P., 918 A.2d

115, 121 (Pa. Super. 2007) (holding that there was probable cause to arrest

the defendant for disorderly conduct - M3, where, after an altercation on a

school bus, the defendant was uncooperative, combative and loud while

being escorted away by police, and he attempted to pull away from the

officers).

      Likewise, the above-mentioned facts were sufficient for the jury to find

that Royster acted with the “intent of preventing a public servant from

effecting a lawful arrest … [and did so by] … employ[ing] means … requiring

substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.3 It took

three police officers “a considerable amount of time” to secure Royster’s

hands, and he resisted their efforts to make a lawful arrest for disorderly

conduct by struggling and yelling.      See Thompson, 922 A.2d at 928


3
  Contrary to Royster’s argument, it is not required for a conviction of
resisting arrest for the Commonwealth to present evidence that that he
created a substantial risk of bodily injury to the police. Royster ignores the
language of section 5104 concerning resistance behavior that justified or
required substantial force to overcome.

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(holding that the evidence was sufficient to support the defendant’s resisting

arrest conviction where, after being informed by police that she was under

arrest for disorderly conduct, she “interlocked her arms and legs” around her

husband, thus requiring that the officer use “substantial force to overcome

the resistance” to effectuate the arrest); Commonwealth v. Schwenk, 777

A.2d 1149, 1154-55 (Pa. Super. 2001) (upholding the defendant’s conviction

for resisting arrest where, inter alia, he struggled and resisted the attempts

of two police officers to place him in handcuffs, requiring force to subdue

him).

        Viewing the evidence in the light favorable to the Commonwealth, we

conclude that there was ample evidence presented to sustain Royster’s

convictions of resisting arrest and disorderly conduct - M3.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




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