J-S63002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                     v.

MARK ALAN ANDRESS

                          Appellant                  No. 1147 WDA 2016


            Appeal from the Judgment of Sentence July 12, 2016
              In the Court of Common Pleas of McKean County
            Criminal Division at No(s): CP-42-CR-0000403-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 28, 2017

      Mark Andress appeals from the judgment of sentence of three and

one-half to eleven years incarceration plus $13,314 in restitution imposed

following his convictions for, inter alia, aggravated assault. We affirm.

      The facts are straightforward.      At 7:09 a.m. on July 14, 2015,

Assistant Chief Michael Ward and Officer Clayton Yohe of the Bradford City

Police department were dispatched to an apartment for a reported domestic

violence incident.   When they arrived, the victim Carol VanHorn told the

officers that Appellant, her boyfriend, had grabbed her and attempted to

shove her towards an open window.        She feared being pushed out of the

window, so she dropped to the ground. Appellant then left the apartment.
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      Both officers observed that Ms. VanHorn was crying and had fresh

markings on her skin.     Appellant returned while the officers spoke to the

victim.   He was visibly agitated and was shouting profanities.   Chief Ward

asked Appellant to place his hands on the wall to pat him down for safety.

Appellant complied, and Officer Ward then told him that he would be placed

in restraints. Chief Ward tried to pull down Appellant’s arm to place him in

handcuffs, but Appellant spun and kicked him in the ankle.        A struggle

ensued, and Appellant choked the officer for approximately one minute.

Appellant eventually released Chief Ward, who subsequently incurred

financial costs for the treatment of his ankle.

      For these acts, Appellant was charged with two counts of aggravated

assault, both of which listed Chief Ward as the victim, in addition to the

following crimes: resisting arrest, two counts of simple assault—one each for

attacking Ms. VanHorn and Chief Ward—and one count of summary

harassment. Following a jury trial, Appellant was acquitted of one count of

aggravated assault, and convicted of all remaining charges.

      Appellant filed timely post-sentence motions, which were denied. He

timely appealed, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.    The matter is ready for our review of Appellant’s two

issues.




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      I.      Was the evidence insufficient to support Defendant's
              conviction for resisting arrest where the underlying arrest
              was unlawful?

      II.     Was the sentencing court's imposition of restitution in
              excess of $13,000.00 an illegal sentence because there
              was no direct causal connection between the conduct
              Defendant was held liable for and the damages suffered by
              the victim?

Appellant’s brief at 4.

      Appellant’s first claim attacks the sufficiency of the evidence to support

the charge of resisting arrest.       Whether the evidence was sufficient to

sustain the charge presents a question of law. Our standard of review is de

novo and our scope of review is plenary.      Commonwealth v. Walls, 144

A.3d 926, 931 (Pa.Super. 2016) (citation omitted).          In conducting our

inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). The charge

of resisting arrest is defined as follows:

      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.




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18 Pa.C.S. § 5104.      Therefore, to sustain a conviction for resisting arrest,

the Commonwealth must establish that the arrest was lawful, which we have

held requires a showing “that the arresting officer possess probable cause.”

Commonwealth       v.    Hock,    728   A.2d   943,   946   (Pa.   1999)   (citing

Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa. 1995)).

     Appellant’s sufficiency challenge is limited to that element.            He

maintains that nothing was found during the pat down and therefore the

officers lacked probable cause to effectuate an arrest.        We disagree, as

statutory authority existed to arrest Appellant for simple assault. Pursuant

to 18 Pa.C.S. § 2711, Ms. VanHorn’s account, as corroborated by the

officer’s observations, supplied the necessary probable cause.

     (a) General rule.--A police officer shall have the same right of
     arrest without a warrant as in a felony whenever he has
     probable cause to believe the defendant has violated section
     2504 (relating to involuntary manslaughter), 2701 (relating to
     simple assault), 2702(a)(3), (4) and (5) (relating to aggravated
     assault), 2705 (relating to recklessly endangering another
     person), 2706 (relating to terroristic threats) or 2709.1 (relating
     to stalking) against a family or household member although the
     offense did not take place in the presence of the police officer. A
     police officer may not arrest a person pursuant to this section
     without first observing recent physical injury to the victim or
     other corroborative evidence.




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18 Pa.C.S. § 2711.1           Herein, the officers observed markings on Ms.

VanHorn’s neck, corroborating her allegation of simple assault.        Therefore,

the officers possessed statutory authority to place Appellant under arrest.

       Appellant’s second claim challenges the ability of the court to impose

restitution, not the amount.           This claim implicates the legality of the

sentence, which presents a question of law that we review de novo.

Commonwealth v. Zrncic, 167 A.3d 149 (Pa.Super. 2017).

       The Crimes Code codifies a trial court’s ability to impose restitution for

personal injuries:

       § 1106. Restitution for injuries to person or property

       (a)General rule.—Upon conviction for any crime wherein . . . the
       victim suffered personal injury directly resulting from the crime,
       the offender shall be sentenced to make restitution[.]

18 Pa.C.S.A. § 1106(a).          Due to the “directly resulting from the crime”

language, we have held that “restitution is proper only if there is a direct

causal connection between the crime and the loss.”           Commonwealth v.

Harriott, 919 A.2d 234, 238 (Pa.Super. 2007) (citing In re M.W., 725 A.2d

792 (Pa. 1999)).       “[T]he courts utilize a ‘but for’ test in calculating those

damages which occurred as a direct result of the crime.” Commonwealth


____________________________________________


1The statute refers to 23 P.S. § 6102 for definitions, which defines “family
member” as, inter alia, “current or former sexual or intimate partners.”




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v. Oree, 911 A.2d 169, 174 (Pa.Super. 2006). The necessary causal link,

however, must pertain to one of the convicted crimes.

      Zrncic, supra, highlights this principle of law, which Appellant

contends compels reversal.     In Zrncic, the police suspected Zrncic was

having sex with a minor and seized the victim’s laptop to investigate

whether the device was used to contact Zrncic.        The laptop apparently

contained direct evidence showing that defendant committed the crime of

unlawful contact with a minor. However, the Commonwealth withdrew that

charge as part of a plea agreement; Zrncic pleaded guilty to aggravated

indecent assault, which bore no relationship to the evidence discovered on

the laptop. The trial court awarded restitution to the victim’s mother for the

costs of replacing the seized device.     We reversed, due to the fact that

Appellant was not convicted of any crime that pertained to the laptop:

      In the instant case, police seized the laptop in order to
      investigate whether Appellant committed the offense of Unlawful
      Contact with a Minor, a charge that the Commonwealth later
      dismissed. It is undisputed that the laptop did not contain any
      evidence of Aggravated Indecent Assault, the crime to which
      Appellant pled guilty. The question, then, is whether the trial
      court may properly impose restitution for the laptop where the
      loss claimed flows from crimes other than the crime to which
      Appellant pled guilty.

      This Court previously addressed this specific question
      in [Commonwealth v. Barger, 956 A.2d 458 (Pa.Super. 2008)
      (en banc)], holding that any restitution ordered must flow from
      only those crimes for which a defendant is convicted, and not
      any underlying, unproven, conduct. In Barger, the police
      charged the appellant with Rape, Statutory Sexual Assault,
      Sexual Assault, Indecent Assault, Corruption of Minors,

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      Terroristic Threats, and Harassment. Barger, 956 A.2d at 459. A
      jury found the appellant not guilty of all felony and misdemeanor
      charges; the trial court, however, convicted the appellant of
      Harassment. Barger, at 460,. The trial court sentenced the
      appellant, in part, to restitution in the amount of $600.00 to
      cover the cost of replacing a couch on which the victim claimed
      the appellant had raped her. Id. at 460.

      Upon review of the record, this Court found that Section 1106
      did not authorize a sentence directing the appellant to pay
      restitution for the couch because there was not a direct nexus
      between the loss of the couch and the charge for which the trial
      court convicted the appellant. Id. at 465.

Id. at 152.

      Appellant maintains that the same logic applies herein. Specifically, he

argues that the jury acquitted him of one of the two aggravated assault

counts, which he claims necessarily establishes that the loss is not traceable

to one of the crimes for which he was actually convicted.      Since Appellant

attaches significance to the jury’s acquittal, we review the elements of the

two aggravated assault crimes.

      (a) Offense defined.--A person is guilty of aggravated assault
      if he:
             ....

              (2) attempts to cause or intentionally, knowingly or
              recklessly causes serious bodily injury to any of the
              officers, agents, employees or other persons
              enumerated in subsection (c) or to an employee of
              an agency, company or other entity engaged in
              public transportation, while in the performance of
              duty;

              (3) attempts to cause or intentionally or knowingly
              causes bodily injury to any of the officers, agents,



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            employees or other persons enumerated                   in
            subsection (c), in the performance of duty;

18 Pa.C.S. § 2702.      The jury acquitted Appellant of the count charging

(a)(2), while convicting under (a)(3). Appellant maintains that this verdict

signifies that the jury convicted Appellant only of choking Chief Ward, not

the kick that caused the ankle fracture. “Specifically, though Defendant was

convicted of the F-2 aggravated assault (the alleged choking), the F-1

aggravated assault charge was rejected by the jury. Consequently, there

was no connection between the simple assault on Chief Ward and the injury

he sustained.” Appellant’s brief at 13.

      We disagree. Preliminarily, we note that this Court cannot divine why

the jury convicted of one count and acquitted of the other, in that the

criminal information did not specifically mention either the injuries to the

ankle or the choking.    Moreover, even if the Commonwealth had explicitly

stated as such, the jury’s verdict does not establish, for purposes of this

restitution analysis, that Appellant’s crimes were not the proximate cause of

Chief Ward’s injuries, especially insofar as criminal convictions require proof

beyond a reasonable doubt.

      In any event, we find that the trial court could properly impose

restitution as a result of Appellant’s conviction for resisting arrest. We have

no doubt that, but for Appellant’s initial act of resisting arrest, the injuries to

Chief Ward would not have occurred.          In this respect, we note that the



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statutes delineating the justifiable use of force explicitly state that the use of

force is not permitted to resist arrest.

      (a) Use of force justifiable for protection of the person.--
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.—

             (1) The use of force is not justifiable under this
             section:

                  (i) to resist an arrest which the actor
                  knows is being made by a peace
                  officer, although the arrest is
                  unlawful; or
      ....

18 Pa.C.S. § 505 (emphasis added). Accordingly, Appellant was not entitled

to resist the arrest.   As our Supreme Court stated in Commonwealth v.

Biagini, 655 A.2d 492 (Pa. 1995): “We cannot state it any more clearly:

there does not exist in Pennsylvania a right to resist arrest, under

any circumstances. The lawfulness of the arrest must be decided after the

fact and appropriate sanctions imposed in a later judicial setting.”       Id. at

499 (emphasis added).

      Thus, but for Appellant’s unlawful act, the injuries would not have

occurred.    Hence, we find that the restitution was properly awarded as a

direct consequence of Appellant’s resisting arrest conviction.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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