J-S23005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL TYRONE DIXON, JR.,

                             Appellant                No. 355 WDA 2018


        Appeal from the Judgment of Sentence Entered February 8, 2018
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003438-2017


BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 18, 2019

        Appellant, Michael Tyrone Dixon, Jr., appeals from the judgment of

sentence of an aggregate term of 18 months’ probation, imposed after he was

convicted of one count each of fleeing or attempting to elude an officer (75

Pa.C.S. § 3733(a)), resisting arrest or other law enforcement (18 Pa.C.S. §

5104), criminal mischief (18 Pa.C.S. § 3304(a)(5)), and driving while

operating privilege is suspended or revoked (75 Pa.C.S. § 1543(a)). Appellant

challenges the sufficiency of the evidence to sustain his convictions.      We

affirm.

        The trial court adopted the following factual summary set forth in a

redacted copy of the police criminal complaint and stipulated to by the parties:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On Tuesday, January 3, 2017[,] Bellevue Police were dispatched
      to Kuhn’s market, 661 Lincoln Avenue[,] for a domestic report….
      As I pulled into the lot[,] I saw both cars in the parking lot near
      the front of the store. The red Jeep pulled away from the Nissan[,]
      than [sic] drove up the lot towards the entrance I was coming in.
      I circled around, activated my emergency lights and fell in behind
      the Jeep as it pulled east bound onto Lincoln Avenue. The Jeep
      did not stop and continued on at a speed of 20 to 25 miles per
      hour. I activated my siren and called out that the vehicle was not
      stopping and followed it with my lights an[d] siren activated as we
      passed through the intersections of Jackson Avenue, Sprague
      Avenue, Hawley Avenue, Meade Avenue, Balph Avenue and
      Sheridan Avenue. I then passed the Jeep on the left side and once
      in front of it slowed my car. The Jeep attempted to pass [on] the
      left[,] and I continued to move to the left as Officer Scheller pulled
      up [on] the left side of the Jeep[,] preventing it from passing.

      I exited my vehicle[,] drew my side arm and ordered the driver,
      later identified as [Appellant], at gun point to show me his hands.
      [Appellant] said[,] “really, now you’re going to shoot me[?”] I
      again ordered [Appellant] [to] show me his hands and he put his
      hands up. I ordered him to open his door and he did not and
      the[n] reached to the door handle but did not open the door. I
      opened the door as I holstered my sidearm and ordered
      [Appellant] out of the vehicle. He again did not comply[,] and I
      pulled him out of the vehicle and[,] at that point[,] saw that
      [Appellant] had never taken the car out of drive and still had his
      foot on the break. As I removed [Appellant,] the car drifted into
      the rear of my patrol vehicle.

      Officer Dold and I attempted to take [Appellant] into custody[,]
      and he physically resisted our efforts to put his hands behind his
      back. We then took him to the ground and I repeatedly ordered
      him to stop resisting. Officer Dold, Officer Rosetti and I then had
      to physically force his hands behind his back because he would
      not comply with our orders to put his hands behind his back. Once
      we were able to secure [Appellant’s] hands[,] he was placed in
      the rear of 7117.

Police Criminal Complaint, Trial Exhibit 1 (undated).

      After being charged with the crimes stated supra, Appellant proceeded

to a non-jury trial on December 7, 2017. On December 12, 2017, Appellant



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failed to appear for the verdict, and a warrant was issued for his arrest. On

that same date, the trial court found Appellant guilty of all counts, and it

delayed sentencing until the apprehension of Appellant. On February 8, 2018,

Appellant was sentenced to an aggregate term of 18 months’ probation.

      On March 12, 2018, Appellant filed a timely notice of appeal, followed

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, Appellant presents the following issues for

our review:

      I.      Whether the evidence was insufficient to support
              [Appellant’s] conviction for fleeing or eluding when the
              record was devoid of any direct or circumstantial evidence
              that [Appellant] knew he was being pursued by the police
              and willfully failed to bring his vehicle to a stop?

      II.     Whether the evidence was insufficient to support
              [Appellant’s] conviction for resisting arrest when there is no
              evidence that [Appellant] exposed officers to substantial risk
              of bodily injury or that officers needed to employ substantial
              force to effectuate the arrest?

      III.    Whether the evidence was insufficient to support
              [Appellant’s] conviction for criminal mischief when his
              vehicle merely accidentally drifted forward into the patrol
              car because he did not place the Jeep in park, and
              [Appellant] did not intend to cause damage [to] the patrol
              car?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      To begin, we note our standard of review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact

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      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      Here, Appellant asserts that the evidence was insufficient to support his

conviction of fleeing or attempting to elude an officer.      More specifically,

Appellant avers that the record is devoid of any evidence that he knew he was

being pursued by the police and/or that he willfully failed to bring his vehicle

to a stop. Appellant’s Brief at 14. He claims that he “did not take any evasive

action … that would suggest he intended to flee or elude the police[,]” and

that he “merely drove his vehicle for less than sixty seconds before he was

stopped by Sergeant Lucas’s patrol car.” Id. at 16. Appellant further avers

that he obeyed the speed limit and that there is no direct evidence in the

record that he “consciously and willfully disregarded an order from one of the

officers.” Id. at 16-17. The record clearly belies Appellant’s claims.

      “[U]pon a visual and audible signal to stop by a police officer, a driver

who fails or refuses to stop, or flees, or attempts to elude a pursuing officer,”

is guilty of fleeing or attempting to elude an officer.    Commonwealth v.

Wise, 171 A.3d 784, 790 (Pa. Super. 2017). See also 75 Pa.C.S. § 3733(a).

“The signal given by the police officer may be by hand, voice, emergency lights

or siren.” 75 Pa.C.S. § 3733(b). Moreover, we note that driving in excess of

the speed limit is not a required element of this crime, as Appellant suggests.

A violation of Section 3733 occurs simply when one “willfully fails or refuses

to bring his vehicle to a stop.” 75 Pa.C.S. § 3733(a). The statute explicitly

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contains an enumerated exception subject to harsher grading where the driver

engages in a high-speed chase while fleeing or attempting to elude the police.

See 75 Pa.C.S. § 3733(a.2)(a)(iii).

      After reviewing the evidence, the trial court determined:

             [W]hile this was not a dramatic high[-]speed chase, it
      nonetheless clearly established the scienter element of the crime
      beyond a reasonable doubt. That evidence included the dash cam
      video from Sergeant Matthew Lucas’ vehicle that vividly captured
      the pursuit of Appellant on Lincoln Avenue, Bellevue’s main street
      and shopping district. The officer, in a marked vehicle with
      emergency lights activated and directly behind Appellant, was
      clearly and unambiguously attempting to pull Appellant over; and
      Appellant willfully failed/refused to bring his vehicle to a stop until
      faced with an overwhelming police presence. Thus, consistent
      with the statutory prohibition against such conduct, Appellant
      made the conscious decision not to stop when clearly confronted
      with a police presence and request to do so. See … Wise, 171
      A.3d [at] 791 … (holding that evidence was sufficient to find
      [Wise] guilty beyond a reasonable doubt of fleeing or attempting
      to elude police when she willfully failed to stop her vehicle after
      [being] given audible and visual signals by the officer to do so).

Trial Court Opinion (“TCO”), 12/4/18, at 7. After careful review, we ascertain

that the trial court’s findings are well-supported by the record.

      Next, Appellant contests the sufficiency of the evidence to uphold his

conviction of resisting arrest. While Appellant acknowledges that at least a

“minor scuffle” occurred incident to his arrest, he argues that the evidence

fails to establish that he exposed the officers to “substantial risk of bodily

injury” or that the officers “needed to employ substantial force beyond that

inherent in the process of making any arrest.” Appellant’s Brief at 19, 22-23.

Appellant’s claim is meritless.



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      A person is guilty of resisting arrest 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. Neither serious bodily injury

nor actual injury to the arresting officer is required.      Commonwealth v.

Lyons, 555 A.2d 920, 925 (Pa. Super. 1989). “Rather, sufficient resistance

is established if the arrestee’s actions created a substantial risk of bodily injury

to the arresting officer.” Id.

      Here, in response to Appellant’s claim:

      The trial court carefully reviewed all of the evidence, which
      included Sergeant Lucas’[s] dash cam video, as well as that of
      Officer Dold[,] which captured the contact with Appellant once he
      finally stopped his vehicle. The trial court determined … based
      upon review of the evidence[,] that Appellant’s conduct,
      specifically his resistance upon being forcibly removed from his
      vehicle, unambiguously established beyond a reasonable doubt
      that Appellant resisted arrest. Commonwealth v. Thompson,
      922 A.2d 926, 928 (Pa. Super. 2007) (holding that [a] defendant’s
      use of even passive resistance requiring substantial force to
      overcome was sufficient to uphold her conviction for resisting
      arrest). As such, Appellant’s claim is without merit.

TCO at 8-9 (unnecessary capitalization omitted). Moreover, we emphasize

that Section 5104 “includes the disjunctive phrase ‘or employs means

justifying or requiring substantial force to overcome resistance.’” Lyons, 555

A.2d at 925 (quoting 18 Pa.C.S. § 5104). Appellant’s actions clearly fall within

the ambit of this portion of the statute, where Sergeant Lucas had to physically

remove Appellant from the vehicle, which was still in drive, and it took several


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officers to subdue and handcuff him. The evidence of record supports that

substantial force was required to overcome Appellant’s resistance to the

arrest.   Thus, we conclude that the trial court reasonably found that the

elements of resisting arrest were met.

      Lastly, Appellant alleges that the evidence was insufficient to sustain his

conviction of criminal mischief, because he did not intentionally crash his

vehicle into Sergeant Lucas’s patrol car. Appellant contends, rather, that his

car “accidentally drifted forward” when the officer removed him from the

vehicle “before he had any opportunity to place the vehicle in park.”

Appellant’s Brief at 27, 29. Again, Appellant’s claim is wholly without merit.

      “A person is guilty of criminal mischief if he … intentionally damages real

property of another….” 18 Pa.C.S. § 3304(a)(5). Instantly, the trial court

explicitly held that “Appellant’s acts, which ultimately caused damage to the

police vehicle, were, in fact intentional.” TCO at 10. The court, as trier of

fact, was free to believe all, part, or none of the evidence presented.

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003). For the

purposes of 18 Pa.C.S. § 3304(a)(5), an actor is deemed to have intentionally

caused the damage where he or she has intentionally committed the act that

led to the damage. See Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.

Super. 2005) (concluding that evidence was sufficient to find the appellant

guilty of criminal mischief where the court found the police officer’s testimony

credible that the appellant intentionally punched a vehicle owned by another,

resulting in damage to the vehicle). After careful review, we conclude that

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the evidence supports the trial court’s finding that Appellant intentionally

failed to shift his Jeep into park when stopped by the officers. Thus, the trial

court reasonably found Appellant guilty of criminal mischief for the damage

caused to the patrol car as a direct result of Appellant’s action.

      Based on our review of the facts in the light most favorable to the

Commonwealth as the verdict winner, we uphold Appellant’s convictions.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




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