J-S73035-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
DEVIN THOMAS COOPER,                     :
                                         :
                  Appellant              :   No. 238 MDA 2017

          Appeal from the Judgment of Sentence December 20, 2016
             in the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0001377-2016

BEFORE:        OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED JANUARY 11, 2018

     Devin Thomas Cooper (Appellant) appeals from his judgment of

sentence imposed following his conviction for the summary offense of

disorderly conduct. We affirm.

     The trial court summarized the facts as follows.

           On March 4, 2016, Corrections Officer Theodore Keppley
     [(CO Keppley)] responded to a disturbance within the F Block of
     the Cumberland County Prison. He called for a lockdown as he
     entered the block. Following the prison’s lockdown protocol, all
     inmates within the F block were told to “lockdown” via the
     loudspeaker.    The inmates were to wait by their cells for
     permission to enter before being secured within their cells. CO
     Keppley then proceeded to assess the situation. Upon entering
     the block, he determined that [Appellant] and another inmate
     had been in an altercation. As per the prison’s protocol for
     inmate altercations, both inmates were deemed an immediate
     security risk. CO Keppley instructed [Appellant] and the other
     inmate to place their hands behind their backs and [cuff up (a
     common order at the prison)] so that they could be processed
     through the medical department. Despite multiple orders to


*Retired Senior Judge assigned to the Superior Court.
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      [cuff up], [Appellant] refused to comply. In fact, he turned
      around on the officer and began to yell and argue. Perceiving
      [Appellant’s] behavior as a threat, CO Keppley put his cuffs away
      and, with the assistance of another corrections officer, placed
      [Appellant] against the wall. Once [Appellant] was restrained
      against the wall, CO Keppley was able to cuff his right hand.
      However, [Appellant] continued to resist their attempts to cuff
      his left hand. The officers were required to use substantial force
      to make him comply. …

Trial Court Opinion, 4/28/2017, at 1-2 (footnotes omitted).

      As a result of this incident, the Commonwealth charged Appellant with

resisting arrest, disorderly conduct, and two counts of harassment.1

Appellant was tried in jury and bench trials held on the same day. The jury

failed to reach a unanimous verdict on the resisting arrest charge, resulting

in a mistrial. The trial court found Appellant to be not guilty of harassment,

but guilty of disorderly conduct.

      On December 20, 2016, the trial court sentenced Appellant to the

statutory maximum of 45 to 90 days of imprisonment and ordered the

sentence to run consecutive to any other sentence with which Appellant was

currently serving. Appellant timely filed a post-sentence motion, which was

denied by the trial court without a hearing. Appellant timely filed a notice of

appeal, and the trial court and Appellant complied with Pa.R.A.P. 1925. The

matter is now ripe for our disposition.




1
  The Commonwealth also filed aggravated assault and simple assault
charges, but withdrew them before trial.

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      On appeal, Appellant presents three issues, which we re-order for ease

of disposition:

      [1.] Did the trial court err in finding [Appellant] guilty of
      disorderly conduct where the evidence was insufficient to prove
      beyond a reasonable doubt that [Appellant] created a hazardous
      condition?

      [2.] Did the trial court err when it rendered a verdict contrary to
      the weight of the evidence presented where [Appellant] was
      unable to turn over his left hand because his hand was pinned in
      between the wall and his body due to the correctional officer
      pushing forward on his body?

      [3.] Did the trial court abuse its discretion by imposing a
      sentence[,] which was manifestly excessive, unreasonable, and
      an abuse of discretion, as the trial court had no basis for
      imposing a maximum sentence and setting the terms of
      incarceration to run consecutive to any other sentence?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      We turn first to Appellant’s challenge to the sufficiency of the

evidence.    Our standard of review in challenges to sufficiency of the

evidence is to determine

      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as 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. 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.


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Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      “A person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

… creates a hazardous or physically offensive condition by any act which

serves no legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4).

      Appellant first argues that the Commonwealth failed to prove beyond a

reasonable doubt that he recklessly created a risk of public inconvenience,

annoyance, or alarm to the correction officers or the inmates on the F Block.

Appellant’s Brief at 22.   He contends that all of the inmates had already

returned to their cells, and therefore, he could not have recklessly created a

risk towards them. Id. at 23. Appellant next argues that his behavior did

not create a hazardous or physically offensive condition. Id. Despite raising

his voice towards the corrections officers, Appellant believes that he was not

a threat to the officers’ safety.   Id. at 22-24.   Appellant stresses that he

simply raised his hand in a questioning gesture and sought out the officers

to receive medical assistance. Id.

      The trial court offered the following analysis:

      Prisons naturally hold dangers for inmates and corrections
      officers alike. It is of the utmost importance for prison staff to
      maintain order to ensure safety within the prison environment.
      These goals are achieved through the development and
      employment of strict protocols.      Video evidence and officer
      testimony established that [Appellant’s] refusal to allow the


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     officers to cuff him during the lockdown created a hazardous
     condition[,] which served no legitimate purpose. Order could
     not be restored, nor could safety be ensured, until [Appellant]
     was subdued. He was told multiple times to comply with the
     reasonable and necessary commands of the officers.             His
     conduct recklessly posed a risk to the safety of the officers
     involved, as well as to everyone within F Block. Inherent in the
     act of attempting to impede a corrections officer from carrying
     out his or her official duties is the risk of creating a condition
     hazardous     or   physically   offensive   in   nature.      See
     Commonwealth v. Love, 896 A.2d 1276, 1286 (Pa. Super.
     2006).     Accordingly, we find sufficient evidence to convict
     [Appellant] of summary disorderly conduct under § 5503(a)(4).

Trial Court Opinion, 4/28/2017, at 3.

     We agree with the trial court. Even if the other inmates were in their

cells, Appellant’s behavior clearly created a risk of public inconvenience,

annoyance, or alarm to the corrections officers. The corrections officers had

responded to a tense situation and were attempting to restore order to the

prison after an altercation. CO Keppley testified that he gave Appellant at

least ten commands to “cuff up,” which Appellant ignored.                 N.T.,

10/26/2016, at 35.    As CO Keppley attempted to place the handcuffs on

Appellant, Appellant escalated the situation by raising his voice and turning

towards CO Keppley, who had to act quickly to put the handcuffs away, lest

Appellant try to use them as a weapon. Id. at 35-36.

     Appellant’s claim that he did not create a hazardous condition is

unsupported by the record and contrary to the evidence admitted at trial

when viewed in the light most favorable to the Commonwealth as the verdict

winner.   As noted supra, Appellant refused multiple commands to cuff up.


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The video of the encounter shows CO Keppley approach Appellant and speak

to him as he attempted to handcuff Appellant, when Appellant suddenly

turned around and raised his hands in the air.     Commonwealth Exhibit 2.

There is no indication in the record that Appellant refused to be handcuffed

because he needed medical assistance;2 instead, Appellant “kept telling [CO

Keppley] he was not at fault” and wanted to “plead his case.”               N.T.,

10/26/2016, at 34-35, 70. Thus, by impeding the officers from carrying out

their duties in a tense situation, refusing to be handcuffed, and ignoring

multiple commands, Appellant created a hazardous condition that served no

legitimate purpose.

     Appellant also argues the verdict is against the weight of the evidence.

We observe the following standard in challenges to the weight of the

evidence.

     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. 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. 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. 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.


2 CO Keppley explained that prison protocol required those in an altercation
to be placed in handcuffs immediately and then escorted for medical
observation and further investigation. N.T., 10/26/2016, at 34.

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Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (citation

omitted).

      Appellant argues that because the other inmates were secured in their

cells or waiting near the door of their cells, he could not have posed a risk to

the inmates. Appellant’s Brief at 25.     This argument, however, is really a

challenge to the sufficiency of the evidence, which we disposed of supra.

Appellant also criticizes the trial court’s failure to acknowledge Appellant’s

inability to give the officers his left arm because he was pinned against the

wall. Id. at 26. CO Keppley, however, testified that Appellant “kept [his left

hand] pinned against his chest and the wall, and he would not comply with

the order of putting his hand behind his back.”      N.T., 10/26/2016, at 37.

Furthermore, even if Appellant is correct that he was unable to give the

officers his left arm because of the officers’ actions, Appellant’s argument

ignores his repeated refusals to be handcuffed prior to the officers’

restraining him against the wall. Thus, we discern no abuse of discretion by

the trial court’s denial of Appellant’s challenge to the weight of the evidence.

      Regarding his challenge to the discretionary aspects of his sentence,

Appellant contends that the trial court imposed the maximum term of

incarceration and ordered the sentence to run consecutive to the sentence

he was already serving because the trial court desired to punish him for

resisting arrest, even though he was not convicted of resisting arrest due to



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the mistrial. Appellant’s Brief at 17-18. Appellant also believes his sentence

is excessive because he did not pose a threat to the community and did not

cause serious bodily injury.    Id. at 18.   Appellant baldly argues the trial

court imposed the sentence solely for punitive, as opposed to rehabilitative,

reasons. Id. at 18-19.

      An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test.

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Instantly, Appellant has satisfied the first requirement by timely filing

a notice of appeal. To satisfy the second requirement, we point out that

“[o]bjections to the discretionary aspects of a sentence are generally waived

if they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed.” Id.         Appellant did file    a post-sentence motion

challenging his sentence.      However, because the discretionary-aspects

claims Appellant presents on appeal are not identical to the one he

presented   in   his   post-sentence   motion,   before   considering   whether



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Appellant’s issues raise a substantial question, we must determine if

Appellant’s claims are properly preserved for our review.   In so doing, we

observe that

     challenges to a court’s sentencing discretion must be raised
     during sentencing or in a post-sentence motion in order for this
     Court to consider granting allowance of appeal. Moreover, for
     any claim that was required to be preserved, this Court cannot
     review a legal theory in support of that claim unless that
     particular legal theory was presented to the trial court. Thus,
     even if an appellant did seek … to attack the discretionary
     aspects of sentencing in the trial court, the appellant cannot
     support those claims in this Court by advancing legal arguments
     different than the ones that were made when the claims were
     preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations

omitted).

     In his post-sentence motion, Appellant asked the court to reconsider

imposing a consecutive sentence because it will act as a detainer and

prohibit him from obtaining sexual offender evaluations and treatment

programs he will need to complete prior to his release from incarceration on

his current sentence.   Post-Sentence Motion, 12/30/2016, at 2.    Appellant

did not challenge the maximum nature of his sentence or contend that his

consecutive sentence was excessive or imposed solely for punitive reasons.

In other words, he did not include any of the discretionary-aspects claims he

now seeks to litigate on appeal within in his motion. Nor did he raise them

at the sentencing hearing.   Therefore, the challenges to the discretionary




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aspects of Appellant’s sentence raised herein are waived. Rush, 959 A.2d at

949.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date:1/11/2018




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