J-S58044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KURT JAMES OSTRANDER

                            Appellant                   No. 516 MDA 2015


           Appeal from the Judgment of Sentence February 18, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005785-2014


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 30, 2015

        Appellant, Kurt James Ostrander, appeals from the judgment of

sentence entered in the Berks County Court of Common Pleas, following his

jury trial conviction for resisting arrest or other law enforcement.1         We

affirm.

        The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.

        Appellant raises the following issue for our review:

           WHETHER THE EVIDENCE ADMITTED AT TRIAL WAS
           INSUFFICIENT TO SUPPORT THE CONVICTION FOR THE
           CHARGE OF RESISTING ARREST?

____________________________________________


1
    18 Pa.C.S.A. § 5104.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58044-15


(Appellant’s Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Paul M.

Yatron, we conclude Appellant’s issue merits no relief.       The trial court

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed May 18, 2015, at 2-5) (finding:

Appellant was aware of officers’ presence; patrol car lights were activated

and officers shined flashlights in Appellant’s direction; Appellant ignored

officers’ repeated commands to descend fire escape; officer heard Appellant

say, “Let me in, the police are coming”; when officers ascended fire escape,

Appellant refused to comply with officers’ orders to show his hands; when

officers rushed Appellant, he continued to resist by clenching his hands

underneath his body and refusing to be handcuffed; Appellant’s actions were

intended to prevent officers from effecting lawful arrest or discharging other

duty; Appellant’s failure to comply required officers to ascend narrow fire

escape several stories above ground; broken glass was strewn about landing

where Appellant struggled with officers; even “mere scuffle” in these

circumstances put officers at substantial risk of bodily injury; evidence was

sufficient to sustain conviction for resisting arrest). Accordingly, we affirm

on the basis of the trial court opinion.

      Judgment of sentence affirmed.




                                      -2-
J-S58044-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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COMMONWEALTH OF                                         IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA                                            BERKS COUNTY, PENNSYLVANIA
                                                        CRIMINAL DIVISION
            v.
                                                        No. CP-06-CR-0005785-2014
KURT OSTRANDER,
     APPELLANT                                          PAULM. YATRON,PRESIDENT              RIDGE

 Colleen Dugan, Esq., Attorney for the Commonwealth
 Douglas Waltman, Esq., Attorney for the Appellant on Appeal


1925(a) Opinion                                                                          May 18, 2015

        Kurt Ostrander ("Appellant") was convicted of resisting arrest' following a jury trial held
February 18, 2015. Appellant was sentenced the same day to not less than one (1) nor more than
two (2) years' incarceration, with time served credit of eighty-five (85) days.
        Appellant filed a prose notice of appeal on March 18, 2015. We appointed Douglas
Waltman, Esquire, to represent Appellant on appeal in an order dated March 20, 2015. Attorney
Waltman had previously served as standby counsel during Appellant's trial, during which he
represented himself. We directed counsel to file a concise statement of errors pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. The concise statement was timely
filed on April 8, 2015.
        Appellant raises the following matters for appellate review:
    1. The evidence was insufficient to support the conviction for the charge of Resisting Arrest
        where the Commonwealth's evidence established that Appellant could barely stand,
        couldn't walk without assistance, and engaged in, at most, a "mere scuffle" with police
       who arrested him on suspicion of public drunkenness and disorderly conduct.
CONCISE STATEMENT, April 8, 2015.


                                        Factual Summary
       On November 25, 2014, Mira Martinez was living at 437 South 11th Street in the City of
Reading. NOTES OF TESTIMONY ("N.T."), Feb. 18, 2015 at 43. At approximately 5:46 a.m., she

called the police to report a disturbance on   f{}?i ~~~Lr~fl~ ~fJ3~uilding.   Jd. Martinez heard

        1
            18 Pa.C.S.A. § 5104.
                                               9£:IIU\J    Bl JJJH~!OZ

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Appellant knocking on the window to another apartment and asking to be let in; she then heard
glass shatter. Id. at 43-44.
        Officers Mark Hackney and Brian Adler responded to the call. Id at 51, 67. They were in
full uniform and driving a marked patrol car. Id. They parked their vehicle next to the fire
escape, and its lights were activated. Id. at 52, 67, 70. They heard Appellant say, "Let me in, the
police are coming." Id Both officers shined their flashlights at Appellant, who was crouched
next to a window. Id. They yelled several times for him to come down, but Appellant would not
comply. Id. at 53, 67.
        The officers ascended the fire escape; Appellant was on the third floor. Id. at 47, 54, 61,
67. The fire escape is very narrow, and only one person can pass at a time. Id. at 45, 53, 68.
Officer Hackney described it as "not very secure." Id at 53. Officer Hackney reached Appellant
first. Id. at 54, 68. Because Appellant had not yet complied with any instructions, and because
broken glass was visible outside the window, Officer Hackney drew his weapon and demanded
that Appellant show his hands. Id Appellant did not comply, so the officers rushed Appellant
and apprehended him by force. Id. at 55, 68. Appellant continued to resist by clenching his hands
underneath himself and refusing to be handcuffed. Id. Officer Hackney applied pressure points
so that Appellant could be handcuffed. Id at 55-56, 68.
        Both officers observed that Appellant was heavily intoxicated, which complicated the
process of maneuvering him down the fire escape. Id. Though the officers contemplated calling
the fire department to bring Appellant down, they eventually led him down the steps. Id. at 56.
Officer Hackney recalled that due to Appellant's intoxication, "we pretty much had to walk for
him." Id. Officer Adler waked backwards down the fire escape to prevent Appellant from falling,
while Officer Hackney secured Appellant from behind. Id. at 69.
        The officers' flashlights lit up the room of the neighbor, Martinez. She heard the officers
tell Appellant to come down from the fire escape at least four times. Id. at 44. She also saw that
the colored lights of the police vehicle were activated. Id. Martinez overheard the pertinent
events, and she corroborated the officers' accounts of what happened:
        DistrictAttorney: Now once you heard the police say-you said at least four
                               times-to    come down, what did you do, hear, and or see
                               next?
        Martinez:              They went upstairs after him, and I could hear them
                               tussling. They were trying to arrest him. He was resisting.

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                                      They were, like, don't fight with us because we can fall off
                                      the fire escape. I could hear the cops tell him, don't tussle;
                                      we will fall over the fire escape.
               District Attorney: How many times did you hear that?
               Martinez:              Oh, it was a while because it was a tussle back and forth,
                                      like, don't resist. I can't really see. It's up above me. I can
                                      hear it.
               District Attorney: Did you hear them continuing to give commands as they
                                  went up the fire escape?
               Martinez:              Yes.
               District Attorney: What were they saying when they went up?
               Martinez:              They were yelling don't resist as they went up and bringing
                                      him down.
        Id at 45-46.


                                                    Discussion
               Appellant argues that the evidence presented at trial was insufficient to support his
        conviction for resisting arrest. CONCISE STATEMENT at    ,1.   Appellant specifically argues that he
        "could barely stand, couldn't walk without assistance, and engaged in, at most, a 'mere scuffle'
        with police." Id. We find this claim to be without merit.
               The standard of review for a sufficiency of the evidence claim is well-settled:
               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, 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 Appellant'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. Moreover, in applying the above test, the entire record
               must be evaluated and all the evidence actually received must be considered.
               Finally, the trier 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.



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         Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 806 A.2d 858

<!>
,.....   (Pa. 2002).
                The crime of "resisting arrest or other law enforcement" 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.
         18 Pa.C.S.A. § 5104. Bodily injury is the "impairment of physical condition or substantial pain."
         Commonwealth v. Torres, 766 A.2d 342, 344 (Pa. 2001) (citing 18 Pa.C.S.A. § 2301).
                As Appellant suggests, Section 5104 does not contemplate a "mere scuffle." Appellant's
         argument, however, ignores the pertinent inquiry-whether he created a substantial risk of bodily
         injury to the officers. In Commonwealth v. Lyons, the Superior Court held there was sufficient
         evidence to support a resisting arrest conviction where the Appellant had struggled with two
         deputies in the middle of a "frigid stream with a rocky uneven bed." 555 A.2d 920, 925 (Pa.
         Super. 1989). The Appellant in Lyons argued that he "committed no physical act which could
         have exposed the officers to a substantial risk of danger or bodily injury." Id. at 924. The Court
         rejected this argument via a straightforward reading of Section 5104: "The statute does not
         require serious bodily injury. Nor does it require actual injury to the arresting officer. Rather,
         sufficient resistance is established if the arrestee's actions created a substantial risk of bodily
         injury to the arresting officer." Id. at 925.
                 The instant case can be analyzed similarly. Appellant's actions necessitated the officers'
         ascension of a narrow fire escape several stories above the ground. Even a "mere scuffle" at such
         heights put the officers in substantial risk of bodily injury. Additionally, there was broken glass
         strewn on the ground throughout the ensuing struggle. Once Appellant was finally handcuffed,
         the officers then had to maneuver him down the fire escape. This scenario is at least as
         dangerous-if not more so-than a struggle in a cold and slippery waterway, which was the
         situation in Lyons. We therefore conclude that Appellant created a substantial risk of bodily
         injury to the officers by leading them into an inherently dangerous situation.
                 We also conclude that Appellant's actions were intended to prevent the officers from
         effecting a lawful arrest or discharging another duty. Appellant was clearly aware of the officers'
         presence, notwithstanding his high level of intoxication. The patrol car's lights were activated,


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"lC
<:'•!I"~
t;~        they yelled commands at Appellant multiple times, and they shined flashlights in his direction.
 ~~
Ci
,.,.i      When they ascended the fire escape, Appellant still did not comply by refusing to show his
           hands. Most decisively, the officers heard Appellant say, "Let me in, the police are coming."


                                                      Conclusion
                  Viewing the evidence in the light most favorable to the Commonwealth as verdict
           winner, we find that there was sufficient evidence for the jury to conclude beyond a reasonable
           doubt that Appellant committed the crime of resisting arrest. This Court respectfully requests that
           the instant appeal be DENIED and the judgment of sentence AFFIRMED.




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