J-S22045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONELL C. HALL,
Appellant No. 895 MDA 2016
Appeal from the Judgment of Sentence May 20, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0003172-2015
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 25, 2017
Appellant, Donell C. Hall,[1] appeals from the judgment of sentence
imposed after his jury conviction of resisting arrest.2 We affirm.
We take the factual background of this case from our independent
review of the certified record and the trial court’s July 25, 2016 opinion.
On April 6, 2015, Detective Dennis Simmons [] and
Detective Donald Heffner [] of the Harrisburg Bureau of Police
Organized Crime and Vice Control Unit were in plain clothes in an
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s name also appears in the certified record as Charles Donell
Hall. (See, e.g., Arraignment, 7/27/15, at 1). However, we will use the
name as it is listed on the trial court docket and in the trial court’s opinion.
(See Trial Court Docket, CP-22-CR-003172-2015, at 2; Trial Court Opinion,
7/25/16, at 1).
2
18 Pa.C.S.A. § 5104.
J-S22045-17
unmarked vehicle patrolling the city of Harrisburg. At
approximately 3:00 P.M., they were in the area of 13th and
Swatara Streets when they heard loud music coming from a red
Dodge Magnum parked on the south side of the street. The
music was so loud that the windows on the vehicle were
vibrating. When they passed the vehicle, Detective Simmons
observed Appellant’s co-defendant, Curtis Hall [(Curtis),3] to be
in the driver’s seat. At that time, Detective Simmons made the
decision to issue a citation,[a] but had to drive around the block
to get back to where the vehicle was parked.
[a]
There is a city ordinance in Harrisburg which
prohibits loud noise and loud music, and a violation
occurs when you can hear the music/noise within
fifty (50) feet of where you are standing. It is a
summary citation which Detective Simmons testified
that he has issued numerous times as both a
uniformed officer and a detective.
By the time the detectives came back around and parked
on Swatara Street, Detective Simmons observed Curtis in the
yard to the rear of 401 South 13th Street walking towards the
rear entrance of the building. The yard was fenced in, but the
gate was open. Detective Simmons approached Curtis in the
yard, identified himself as a police officer and asked for his
identification in order to issue the citation. . . .
Since Curtis was not complying with verbal commands and
was becoming [increasingly] agitated and aggressive, Detective
Simmons made the decision to detain Curtis, primarily for officer
safety. . . . [Curtis continued to resist, and] Detective Heffner
came over to assist. . . .
In the midst of the struggle between Curtis and the
detectives, several people came out of the residence where the
incident began and started to gather around. One of those
people was Appellant, who approached the scene and began
yelling at the detectives, asking why they were wrestling with his
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3
Curtis filed a separate appeal from his judgment of sentence in this matter,
at docket number 894 MDA 2016.
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brother. Appellant was told several times to step back away
from the scene.
Appellant refused, and continued to walk towards the
detectives with his hands clenched and chest expanded in an
aggressive stance. Detective Heffner testified that he thought
Appellant was going to swing at Detective Simmons. Appellant
came so close to the detectives while they were still struggling
with Curtis that Detective Simmons had to risk releasing the
grasp on Curtis in order to push Appellant away. Appellant
pushed Detective Simmons back. At this time, there were
approximately fifteen (15) to twenty (20) people that had come
out of their residences to see what was going on and Detective
Heffner believed they were outnumbered and starting to lose
control. The crowd was yelling and cursing, and ultimately made
the entire situation volatile and dangerous.
After Curtis was arrested and placed into handcuffs,
Detective Heffner told Appellant that he would be arrested for
interfering with the lawful arrest of Curtis. Appellant was
directed to place his hands behind his back. He refused and
when Detective Heffner reached for Appellant’s arm, Appellant
grabbed both of Detective Heffner’s wrists and shoved him
backwards. Detective Heffner shoved Appellant back in an
attempt to gain control. Detective Simmons [saw] the struggle
between Detective Heffner and Appellant, [swept] Appellant’s
feet and they all [fell] to the ground. Appellant then [tried] to
stand up, refusing to give the detectives his arm to be
handcuffed. At that time, back-up officers and probation officers
arrived on scene, and came over to assist in the arrest of
Appellant.
Since Appellant was unable to be controlled, Detective
Heffner asked Probation Officer Brandon Rigel [] to deploy the
stun gun on Appellant. PO Rigel deployed a drive stun to
Appellant’s leg, and [the] detectives were finally able to get
Appellant’s arms behind his back to be handcuffed. By the end
of the struggle, Detective Heffner had a scraped right hand,
scrapes up and down his right arm, and bruising on the back of
his right arm. In addition, his glasses were knocked off during
the struggle and were scratched.
(Trial Court Opinion, 7/25/16, at 2-5) (record citations omitted).
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The Commonwealth charged Appellant with two counts of resisting
arrest, and one count each of obstructing administration of law 4 and criminal
mischief─damage to property.5 On May 20, 2016, the jury convicted
Appellant of one count of resisting arrest. The same day, the trial court
sentenced him to twenty-four months’ county probation. Appellant timely
appealed on May 25, 2016, and filed a timely court-ordered statement of
errors complained of on appeal on June 7, 2016. The court filed an opinion
on July 25, 2016. See Pa.R.A.P. 1925.
Appellant raises one issue for this Court’s review:
I. Whether the evidence at trial was insufficient to prove that
Appellant committed the crime of resisting arrest where the
Commonwealth failed to prove beyond a reasonable doubt:
A. That Appellant created a substantial risk of bodily injury or
resisted arrest by means justifying or requiring substantial
force to overcome his resistance; and
B. That there was an underlying lawful arrest?
(Appellant’s Brief, at 5).
As a preliminary matter, we observe that question I(B) is waived
because our review of the certified record confirms the trial court’s
observation that Appellant did not challenge the lawfulness of his underlying
arrest in the trial court. (See Trial Ct. Op., at 9); see also Pa.R.A.P. 302(a)
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4
18 Pa.C.S.A. § 5101.
5
18 Pa.C.S.A. § 3304(a)(5).
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(“Issues not raised in the [trial] court are waived and cannot be raised for
the first time on appeal.”). Therefore, we confine our review to question
I(A).
Our standard of review is well-settled:
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Reese, 2017 WL 750789, at *5 (Pa. Super. filed Feb.
27, 2017) (citation omitted). Pursuant to section 5104 of the Crimes Code:
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.
In this case, Appellant argues that the evidence was insufficient to
support his conviction where “the Commonwealth failed to prove that [he]
created a substantial risk of bodily injury or resisted arrest by means
justifying or requiring substantial force to overcome his resistance.”
(Appellant’s Brief, at 12) (unnecessary capitalization and emphasis omitted).
We disagree.
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The statute, it is clear, does not require the aggressive use
of force such as a striking or kicking of the officer. A person
resists arrest by conduct which “creates a substantial risk of
bodily injury” to the arresting officer or by conduct which
justifies or requires “substantial force to overcome the
resistance.”
Commonwealth v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984) (footnote
omitted) (emphasis added). In other words, “the statute includes the
disjunctive phrase ‘or employs means justifying or requiring substantial force
to overcome resistance.’” Commonwealth v. Lyons, 555 A.2d 920, 925
(Pa. Super. 1989) (concluding that elements for resisting arrest were met
where it took four deputies to subdue appellant, thereby requiring
substantial force “to overcome appellant’s resistance to the arrest.”)
(citations omitted).
Here, the trial court explained:
Detectives Simmons and Heffner testified as to how Appellant
interfered with their lawful arrest of Curtis. Appellant was yelling
and screaming. (See N.T. Trial, 5/19/16, at 27-28, 30, 90-91).
He came up behind the detectives in an aggressive stance, [was
told to step back, but instead charged toward them,] and
Detective Heffner believed Appellant was going to punch
Detective Simmons. (See id. at 27-28, 90, 126). This caused
Detective Simmons to let go of Curtis, leaving Detective Heffner
alone in trying to handcuff him, in order to get Appellant to back
away from the scene. (See id. at 90, 126).
In addition, when Detective Heffner advised Appellant that
he would be placed under arrest for his interference with the
lawful arrest of Curtis, Appellant refused to comply[, grabbed
both of the detective’s wrists,] and shoved [him]. (See id. at
30, 91, 127). Detective Heffner shoved back and a struggle[]
ensued. (See id. at 91, 127). Detective Heffner testified that
by this time he was exhausted from the previous struggle with
Curtis. (See id. at 92). He also stated that the crowd around
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them had grown and had become unruly, causing the detectives
to be outnumbered and believe they were losing control of the
situation. (See id. at 28, 90).
PO Rigel also testified at the trial and corroborated the
testimony of both Detective Simmons and Detective Heffner.
When PO Rigel arrived on scene, he observed Appellant pulling
away and flailing around from the detectives as they were trying
to detain him. (See id. at 137). Appellant refused to give the
detectives his hands, therefore the detectives requested PO Rigel
to deploy his Taser, and he did. (See id. at 92, 137) After
being tased, the detectives were finally able to forcibly place
Appellant in handcuffs. (See id. at 137). PO Rigel also testified
that Appellant appeared to be bigger than both Detective
Simmons and Detective Heffner. (See id. at 138).
(Trial Ct. Op., at 6-7) (footnote omitted) (record citation formatting and
some record citations provided).
The foregoing facts establish that, with the intent of preventing a
lawful arrest, Appellant resisted police, requiring their use of substantial
force to overcome his resistance. See Lyons, supra at 925; Miller, supra
at 146. Hence, we conclude that the trial court properly found that the
evidence was sufficient to support Appellant’s conviction. See Reese,
supra at *5. Appellant’s issue does not merit relief. 6
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6
Neither are we legally persuaded by Appellant’s reliance on
Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981). (See
Appellant’s Brief, at 13-16). In Rainey, officers woke the defendant from a
drunken stupor, handcuffed him, and were escorting him to the police
vehicle when he attempted to flee. See Rainey, supra at 1148-49. To
thwart that attempt, the officer grabbed the defendant by the sleeve and he
“began to shake himself violently, to wiggle and squirm in an attempt to free
himself of the officer’s grasp.” Id. at 1149. This Court found that the
Commonwealth failed to establish that the defendant resisted arrest, and
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
_______________________
(Footnote Continued)
that at most this was a minor scuffle, where the defendant merely
attempted to “shake off the policeman[] detaining [him,]” and he neither
“struck, nor struck out at the arresting officers; nor did he kick or push
them.” Id. at 1150. However, here, Appellant aggressively approached the
scene of Curtis’ arrest, yelled at the detectives, refused to back away,
shoved a detective, and fought the attempts to handcuff him, all in what the
detectives assessed as a dangerous, volatile situation. These circumstances
are distinguishable from the minor scuffle presented in Rainey. Moreover,
Rainey only considered the amount of force a defendant must expend for a
resisting arrest claim. It did not address the “substantial force” required by
the police to overcome the defendant’s resistance. Therefore, for all of
these reasons, Rainey is inapposite to the circumstances presented here
and is not legally persuasive.
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Com. v. Hall, D.
Combined Opinion