Com. v. Boyer, J.

J-S13038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JODY ANDREW BOYER

Appellant No. 1531 WDA 2014

Appeal from the Judgment of Sentence entered September 11, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0000069-2014

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 3, 2015

Appellant Jody Andrew Boyer appeals from the judgment of sentence

entered in the Court of Common Pleas of Fayette County (“trial court”),

following his jury conviction for resisting arrest under Section 5104 of the

Crimes Code (Code), 18 Pa.C.S.A. § 5104.1 Upon review, we affirm.

The facts and procedural history underlying this case are

uncontroverted. As summarized by the trial court:

____________________________________________

1
Section 5104 of the Code provides:

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.
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1) On December 4, 2013, at approximately 11:00 a.m., South
Connellsville Borough Police Officer, Russell Paul Miller, Jr., was
dispatched to 1511 Hyndman Street, following a phone call
advising that someone was occupying an abandoned trailer
located thereon.
2) Officer Miller arrived at the reported location, operating his
patrol vehicle and dressed in uniform. Officer Miller exited his
patrol vehicle and approached a single-wide trailer marked as
“condemned”. Through the front trailer window, Officer Miller
observed a female occupant inside the trailer.
3) While continuing his approach to conduct his investigation,
Officer heard a door slam open, and out of the corner of his eye
he observed [Appellant], dressed in a white shirt and blue jeans,
running away from the back of the trailer. Officer Miller
observed [Appellant] carrying a grey, Wal-Mart shopping bag as
[Appellant] ran from the property.

4) Officer Miller yelled to [Appellant], “police, stop, drop the bag,
show me your hands.” When [Appellant] did not comply, Officer
Miller engaged in a foot pursuit.
5) Officer Miller continued his pursuit until such time as he
observed [Appellant] reach a down-hill embankment located on
Hyndman Street, at which time Officer Miller gave a second
verbal command. [Appellant] stopped and looked back toward
Officer Miller before entering the roadway, causing two vehicles
traveling [in] opposite directions to swerve to avoid contact.
Officer Miller noted [Appellant’s] actions almost caused a vehicle
collision.
6) [Appellant] then crossed over the guard rail and entered into
an active train yard, maneuvering between moving train cars.
Officer Miller stopped his foot pursuit for officer safety.
7) [Appellant] was charged with [r]esisting [a]rrest and
[d]isorderly [c]onduct. He filed an [o]mnibus [p]retrial [m]otion
with [a]rgument on May 9, 2014 which was denied by [the trial
court] following argument on May 30, 2014. Following a jury
trial on September 8, 2014, [Appellant] was convicted of
[r]esisting [a]rrest and found not guilty of [d]isorderly
[c]onduct. [Appellant] was sentenced to not less than 6 months
nor longer than 24 months incarceration on September 11,
2014.

Trial Court Opinion, 11/17/14, at 1-3.

On appeal, Appellant essentially raises two issues for our review.

First, Appellant argues the Commonwealth did not present sufficient

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evidence to support his conviction for resisting arrest, because it failed to

establish the “lawful arrest” and “substantial risk of bodily injury” elements

under Section 5104.2 Second, Appellant argues Officer Miller’s in-court

identification of Appellant was unreliable because “[Officer Miller] did not

know the individual’s identity at the time of the incident.” Appellant’s Brief

at 15.3

“A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

____________________________________________

2
To the extent Appellant argues the Commonwealth failed to establish a
prima facie case, we reject such argument as meritless. Appellant here was
convicted in a jury trial. See Commonwealth v. McCullough, 461 A.2d
1229, 1231 (Pa. 1983) (concluding the fact that the Commonwealth did not
establish a prima facie case of robbery at the defendant’s preliminary
hearing was immaterial where the Commonwealth met its burden of proving
the underlying offense at trial beyond a reasonable doubt). Moreover, as
the Commonwealth notes, Appellant does not state in his brief what, if any,
statements he seeks to suppress.
3
Appellant failed to provide the facts of this case in the “statement of the
case” section of his brief. Instead, he provided a six-sentence summary of
procedural history irrelevant to the issues raised. Appellant’s brief violates
Rule 2117(a)(4), which requires an appellant to set forth “[a] closely
condensed chronological statement, in narrative form, of all the facts
which are necessary to be known in order to determine the points in
controversy, with an appropriate reference in each instance to the
place in the record where the evidence substantiating the fact relied
on may be found.” Pa.R.A.P. 2117(a)(4) (emphasis added); see also
Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa. Super. 1993)
(quashing appeal because, among other reasons, appellant’s statement of
the case “only attempts to provide some minimal information regarding the
procedural and factual history of the case”). Nevertheless, we decline to find
waiver on this basis.

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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
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. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, 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.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).

We first address Appellant’s argument that the underlying arrest was

unlawful. In this regard, Appellant points out “the Commonwealth never

demonstrated that the property was actually abandoned or posted. Further,

Officer Miller never observed [Appellant] actually inside the trailer. He only

saw [Appellant] run behind the trailer.” Appellant’s Brief at 11. Thus, given

the totality of the circumstances, Appellant argues, “the officer’s attempt to

make an arrest was not supported by probable cause.” Id. We disagree.

When we are asked to determine whether probable cause exists to

arrest an appellant, we are called upon to render a legal determination, “for

which our scope of review is plenary and our standard of review de novo.”

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007).

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A defendant may be convicted of resisting arrest if he, “with the intent

of preventing a public servant from effecting a lawful arrest or

discharging any other duty, . . . 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 (emphasis added).

“[T]o be convicted of resisting arrest, the underlying arrest must be

lawful.” Jackson, 924 A.2d at 620 (citation omitted). In other words, “the

lawfulness of an arrest depends on the existence of probable cause to arrest

the defendant.” Id. As we recently explained:

Probable cause to effectuate an arrest exists when the facts and
circumstances within the knowledge of the arresting officer are
reasonably trustworthy and sufficient to justify a person of
reasonable caution in believing that the arrestee has committed
an offense. In addressing the existence of probable cause,
courts must focus on the circumstances as seen through the
eyes of the trained police officer, taking into consideration that
probable cause does not involve certainties, but rather the
factual and practical considerations of everyday life on which
reasonable and prudent men act.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014)

(quotation omitted).

Instantly, we find no basis upon which to disagree with the trial court’s

conclusion that the underlying arrest was lawful, i.e., supported by probable

cause. As the trial court found:

Officer Miller . . . was dispatched to the location, having received
a phone call regarding the occupation of an “abandoned” and
“posted” property. Upon arrival, Officer Miller approached a
single-wide trailer located on the property and through the

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window observed a female inside the trailer. Soon thereafter,
Officer Miller heard a door slam open and out of the corner of his
eye, he saw [Appellant] running from the property carrying a
bag. Officer Miller testified that [Appellant] ignored two separate
verbal commands to stop, and continued to flee.

Trial Court Opinion, 11/17/14, at 5.4 Based on these findings, the trial court

concluded:

____________________________________________

4
At trial, Officer Miller testified:
I received a telephone call stating that there were people
occupying a trailer that was posted “Not For Occupancy. . . . I
went to the residence to investigate it. I was in full patrol
uniform . . . . Duty boots, pants, shirt, patches, tie, [and] badge.
. . . I took our Crown Victoria[.]

....
I approached through an alley. The trailer was the last
residence on the alley on the left-hand side. It was a single-
wide trailer. I parked in the alley directly in front of the trailer,
the short ways, not the longways, so that I could see both the
front and the back on my approach. . . . As I exited my vehicle,
there was a female in the window. . . . I observed the trailer. I
could see down both axes of the trailer both sides, the front and
the back. On the front there was a porch, and on the back there
was just a yard.
....

I was heading towards the front because I heard verbal
notification that someone was there. As I was turning to go that
way, I observed a male making landfall from the upper door of
the trailer and running down the yard.
....
It was a white male wearing a white T-shirt, blue jeans, and had
what appeared to be a gray Walmart bag, hugging it as though
you would hold a football.
....
I turned and began to pursue. I made a verbal notification,
“Stop, drop the bag, police, keep your hands where I can see
[them].” The individual did not stop. . . . He ran, he jumped
(Footnote Continued Next Page)

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looking at the totality of the circumstances, the information
provided to Officer Miller regarding the occupation of the
abandoned property, together with the Officer’s personal
observations of the female occupant within the property, as well
as [Appellant] existing the property, carrying a bag and hastily
fleeing on foot, constitutes a reasonable belief that [Appellant]
had committed or was in the process of committing a crime.

Id. 5-6.5 Although the Commonwealth and the trial court do not identify per

se the crime providing Officer Miller with probable cause to arrest, the

record, as recited above, makes clear that the offense was a trespass.

Officer Miller received a phone call about individuals occupying a trailer

posted for non-occupancy and, upon his arrival at the scene, he observed a

female through a window and then saw Appellant running away from the
_______________________
(Footnote Continued)

down the embankment, I pursued him. I slid down the
embankment. I announced again, “Please stop, drop the bag,
get your hands where I can see [them].” He stopped in the
middle of the intersection, turned to face me to see how far I
was. Two vehicles swerved and nearly cause a vehicle collision.
He immediately began running again, went over a guardrail into
the train yard, where he went between two moving train cars.
At that time I broke pursuit, because I did not want to risk
injury.

N.T. Trial, 9/8/14, at 17-22.
5
The trial court also noted:

Additionally, [Section 5104] requires that there be a “discharge
of any other duty” within the meaning of the statute. In the
instant case, Officer Miller, a public servant, was dispatched in
response to a telephone call reporting the occupation of a posted
abandoned property. [The trial court] finds that the act of
investigating such an unlawful occupation within the locale of
South Connellsville Borough, to be legitimate within the purview
of the discharge of duties of a Borough Police Officer such as
Office Miller.

Trial Court Opinion, 11/17/14, at 6.

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trailer. Based on these facts, we believe Officer Miller had probable cause to

arrest Appellant.

Next, we address Appellant’s argument that the Commonwealth failed

to provide sufficient evidence to establish that Appellant’s conduct created a

substantial risk of bodily injury to the Officer Miller. Thus, Appellant argues

“Officer Miller was not exposed to substantial danger during the December 4,

2013, foot pursuit. Officer Miller never came in contact with the individual

he later identified as [Appellant] and he suffered no injuries as a result of

the chase that day.” Appellant’s Brief at 12 (emphasis added).

It is well-settled that “it is not criminal merely to flee arrest. However,

where the circumstances of the flight expose the pursuing officers to

substantial danger a conviction for resisting arrest is proper.”

Commonwealth v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984). Section

5104 “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.” Commonwealth v. Lyons, 555 A.2d 920, 925 (Pa.

Super. 1989).

Instantly, we agree with the trial court’s conclusion that the

Commonwealth provided sufficient evidence to establish the element of

substantial risk of bodily injury under Section 5104. The record in this case

reveals Appellant subjected Officer Miller to substantial danger, requiring

Officer Miller to discontinue the foot pursuit. Similarly, Appellant also put

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himself and motorists in danger. As the trial court found, “[Appellant ran]

down an embankment, before entering into a roadway in which vehicles

coming in two different directions had to swerve to avoid contact, nearly

avoiding a collision. Thereafter, . . . [Appellant] cross[ed] the guard rail and

enter[ed] an active train yard, maneuvering between moving train cars.”

Trial Court Opinion, 11/17/14, at 6.

Based on our review of the entire record and viewing the evidence in

the light favorable to the Commonwealth, thereby giving it the benefit of the

reasonable inferences derived therefrom, we conclude that the

Commonwealth presented sufficient evidence to sustain Appellant’s

conviction for resisting arrest. Accordingly, given the evidence and the

circumstances following Appellant’s flight from the abandoned trailer, the

jury could, and did, reasonably infer that Appellant resisted a lawful arrest

and subjected Officer Miller and motorists to substantial risk of bodily injury.

Appellant next argues Officer Miller’s in-court identification of Appellant

was unreliable because Officer Miller did not know Appellant personally at

the time of the incident.6

Before addressing the merits of Appellant’s claim, we must determine

whether Appellant properly has preserved the issue for our consideration.

____________________________________________

6
Appellant fails to identify the place in the record where this issue is
preserved, as is required in our Rules of Appellate Procedure. See R.A.P.
2117(c), 2119(e).

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With respect to preserving challenges to the admission or exclusion of

evidence, the Pennsylvania Rule of Evidence 103 provides in relevant part:

(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or
motion in limine; and
(B) states the specific ground, unless it was apparent
from the context[.]

Pa.R.E. 103(a)(1). In Pennsylvania, it is well-settled that a party must make

a timely and specific objection at trial in order to preserve an issue for

appellate review. See Pa.R.A.P. 302(a); see also Commonwealth v.

Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation omitted) (“In

order to preserve an issue for review, a party must make a timely and

specific objection at trial.”). Failure to do so results in waiver of that issue

on appeal. See Pa.R.A.P. 302(a); see also Commonwealth v. Schoff,

911 A.2d 147, 158 (Pa. Super. 2006).

Instantly, the trial transcript reveals that Appellant’s counsel failed to

object to Appellant’s in-court identification by Officer Miller.

Q. Okay. And were you able to view this individual?
A. I was.
Q. The individual that you observed on the roadway on the date
in question that we’re speaking of, is that individual present in
the courtroom today?
A. Yes, ma’am. He’s the individual in the purple shirt, seated
right there.
[The Commonwealth:] Your Honor, I would ask that the record
reflect that Officer Miller has identified [Appellant] in this matter.

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The [trial court]: The record will so reflect.

N.T. Trial, 9/8/14, at 22-23. Accordingly, we conclude Appellant has waived

his evidentiary argument. See Commonwealth v. Ballard, 80 A.3d 380,

400 (Pa. 2013), (holding appellant’s arguments were waived because

appellant failed to object at trial), cert. denied, 134 S. Ct. 2842 (2014);

see also Pa.R.E. 103(a).

Judgment of sentence affirmed.

Judge Mundy joins the memorandum.

President Judge Emeritus Bender files a dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015

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