Com. v. Lovelace, T.

J-S49024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

TEKEESHA LARAE LOVELACE

Appellant No. 543 EDA 2019

Appeal from the Order November 30, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0001288-2018

BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED APRIL 06, 2020

Appellant, Tekeesha Larae Lovelace, appeals from her judgment of

sentence of 11½—23 months’ imprisonment for aggravated assault and a

concurrent sentence of 2—23 months’ imprisonment for resisting arrest.1

Appellant argues, inter alia, that the evidence was insufficient to sustain her

convictions because the jury acquitted her of the underlying charge of driving

under the influence of a controlled substance. We affirm.

On February 26, 2017, Appellant was arrested during a traffic stop and

charged with the foregoing offenses. Counsel for Appellant conceded during

a pretrial hearing that the police officer had valid grounds to stop her vehicle

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(3) and 5104, respectively. Appellant was also
convicted of driving under suspension, 75 Pa.C.S.A. § 1543, but none of her
arguments on appeal involve this conviction.
J-S49024-19

because its headlights were out. The case proceeded to trial, and the jury

found Appellant guilty of aggravated assault and resisting arrest but not guilty

of driving under the influence (“DUI”). On November 30, 2018, the trial court

imposed sentence. Appellant did not file post-sentence motions, but she filed

a timely appeal pro se.

On February 26, 2019, this Court remanded the case to the trial court

to conduct a hearing concerning whether Appellant knowingly, intelligently

and voluntarily waived her right to appellate counsel. On October 17, 2019,

Appellant informed the trial court that she desired counsel, and the court

appointed counsel to represent her on direct appeal. On December 11, 2019,

this Court ordered the trial court to direct Appellant to file a supplemental

Pa.R.A.P. 1925(b) concise statement. Appellant timely filed a supplemental

Rule 1925 statement, and the trial court subsequently filed a Pa.R.A.P.

opinion.

Appellant raises the following issues in this appeal, which we re-order

for the sake of convenience:

1. Whether there was sufficient evidence to support the jury's
verdict for guilty on Aggravated Assault (18 Pa.C.S.A. §
2702(a)(3)) and Resisting Arrest insofar that the jury found the
Appellant not guilty of Driving Under the Influence, the purported
charge for which the Appellant was placed under arrest out of
which the Aggravated Assault and Resisting Arrest charges stem.

2. Whether the jury's verdict was against the weight of the
evidence insofar as it found Appellant not guilty of Driving Under
the Influence (75 Pa.C.S.A. § 3802(d)(2)), which was the
purported underlying charge for arrest out of which the Resisting

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Arrest (18 Pa.C.S.A. § 5104) and Aggravated Assault (18
Pa.C.S.A. § 2702(a)(3)) charges stem.

3. Whether the trial court abused its discretion in sentencing the
Appellant to a period of incarceration to a period of 11½ to 23
months on the Aggravated Assault charge, 2 to 23 months on the
Resisting Arrest charge (concurrent to Aggravated Assault), based
on the fact Appellant was found not guilty of the Driving Under
Influence charge, the underlying charge of which was the cause
for the arrest that led to the Aggravated Assault and Resisting
Arrest charges being filed.

Appellant’s Brief at 5-6.

We first address Appellant’s challenge to the sufficiency of the evidence

underlying her convictions for aggravated assault and resisting arrest. When

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he

facts and circumstances established by the Commonwealth need not preclude

every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d

521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to

determine the weight to accord to each witness’s testimony and to believe all,

part or none of the evidence. Commonwealth v. Tejada, 107 A.3d 788,

792–93 (Pa. Super. 2015). The Commonwealth may sustain its burden of

proving every element of the crime by means of wholly circumstantial

evidence. Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super.

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2018). As an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder. Commonwealth v.

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

The trial court accurately summarized the evidence against Appellant as

follows:

The testimony of Officer Ryan Corcoran and Corporal Kenneth R.
Michels, Jr., as well as the video recording from Officer Corcoran’s
police vehicle and the body camera video from Officer Corcoran
and Corporal Michels establish [the following]. At approximately
2:45 a.m. on February 26, 2017, Officer Corcoran was on patrol
duty as an officer of the Coatesville Police Department when he
observed a midsize sedan traveling east in the 1000 block of East
Lincoln Highway in Coatesville, Chester County, with no
headlights. Officer Corcoran pulled the vehicle over, approached
the vehicle and asked the driver for her license. The driver of the
vehicle, identified by Officer Corcoran as [Appellant], stated she
did not have a license.

Officer Corcoran then returned to his police vehicle to remove his
jacket in order to expose his body camera. Upon returning to
[Appellant]’s vehicle, Officer Corcoran again attempted to obtain
identification from [Appellant]. [Appellant] refused to answer and
Officer Corcoran observed that [Appellant] had a distinct slur in
her speech, her reaction time was slow and she had a “1000 yard
stare.” Officer Corcoran believed [Appellant] was under the
influence of alcohol or drugs and wanted [Appellant] to exit the
vehicle in order to make further observations and insure that
[Appellant] did not attempt to drive away.

Despite giving [Appellant] many opportunities. [Appellant] did not
voluntary exit her vehicle. Therefore, Officer Corcoran and
Corporal Michels, who had arrived as back-up, were forced to
physically remove [Appellant] from her vehicle. When Officer
Corcoran took [Appellant]’s arm in order to remove her from the
vehicle, [Appellant] propped her foot into the door jamb in order
to wedge herself into the vehicle. [Appellant] heavily resisted the
officers’ attempts to remove her from the vehicle, yelling
profusely, fighting and kicking the officers. It took the officers
approximately 2 minutes to remove [Appellant] from her vehicle.

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J-S49024-19

Officer Corcoran removed [Appellant] from her vehicle and placed
her in handcuffs for the safety of the officers as well as [Appellant]
herself.

While Officer Corcoran was removing [Appellant] from her vehicle,
[Appellant] became limp and refused to walk to the police vehicle.
[Appellant] kicked Officer Corcoran in the shin repeatedly.
[Appellant] also kicked Officer Corcoran’s hand into the cage in
the police vehicle, causing his knuckles to swell. Although Officer
Corcoran testified that his hand hurt, he did not seek medical
attention and his hand was not broken. Officer Corcoran can be
heard asking [Appellant] to stop kicking him and saying “ow”
when [Appellant] kicked his hand, although [Appellant] is not seen
kicking Officer Corcoran on the body camera video.

Corporal Michels testified that he observed [Appellant] fail to
provide the requested documents to Officer Corcoran and failed to
voluntarily exit her vehicle when asked several times to do so.
Corporal Michels testified that [Appellant] was actively resisting
being removed from her vehicle, grabbing the steering wheel with
her right hand and placing her right leg between the door jamb.
Corporal Michels testified that [Appellant] kicked both he and
Officer Corcoran while they attempted to remove her from her
vehicle.

Trial Court Opinion, 1/10/20, at 5-7.

The crime of aggravated assault under 18 Pa.C.S.A. § 2702(a)(3)

requires proof that Appellant “attempt[ed] to cause or intentionally or

knowingly caused bodily injury to [an officer] . . . in the performance of duty.”

Id.; Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013).

Bodily injury is “[i]mpairment of physical condition or substantial pain.” 18

Pa.C.S.A. § 2301. The Commonwealth “has no obligation to establish that the

officer actually suffered a bodily injury; rather, [it] must establish only an

attempt to inflict bodily injury, and this intent may be shown by circumstances

which reasonably suggest that a defendant intended to cause injury.”

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J-S49024-19

Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011).

Furthermore,

[f]or the narrow purposes of determining whether a person has
committed aggravated assault, if the police effectuate an arrest
and the arrestee physically resists the officer, and subsequently
the arrest is deemed to be without probable cause, nevertheless,
the arrestee is guilty of aggravated assault because the officer
was within the “performance of duty” when effectuating the
arrest. In 1986 the legislature amended [Section] 2702(a)(3) and
substituted the words “making or attempting to make a lawful
arrest” with the phrase “in the performance of duty.” This change
broadened the scope of the statute, evidencing an intent to
protect officers when effectuating all arrests, even those which are
subsequently determined to have lacked probable cause at their
inception.

Commonwealth v. Biagini, 655 A.2d 492, 498 (Pa. Super. 1993).

The evidence is sufficient to sustain Appellant’s conviction for

aggravated assault. The entire incident, beginning with the traffic stop and

culminating in Appellant’s arrest, took place in the performance of Officer

Corcoran’s and Officer Michel’s duties as traffic officers in the City of

Coatesville. As the officers performed their duties, Appellant attempted to

cause them bodily injury by kicking them repeatedly in the shins and kicking

Officer Corcoran’s hand as they removed her from her car. Although the

officers did not suffer leg injury, and Officer Corcoran merely suffered swollen

knuckles, the jury could reasonably conclude that Appellant intended to cause

them bodily injury.

We disagree with Appellant that Commonwealth v. Wertelet, 696

A.2d 206 (Pa. Super. 1997), requires reversal of her aggravated assault

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J-S49024-19

conviction. The defendant in Wertelet kicked the arresting officer in the shin

twice during a dispute on her property. We held that this “relatively harmless

physical contact” did not amount to serious bodily injury, id. at 212, but we

did not squarely address whether the defendant attempted to cause bodily

injury to the officer. Several years after Wertelet, however, we reasoned

that kicking could indeed constitute aggravated assault under Section

2702(a)(3), stating in relevant part, “[A]lthough the officer did not testify to

any pain she experienced as a result of appellant’s kick, such conduct clearly

constitutes an attempt to inflict bodily injury.” Commonwealth v. Petaccio,

764 A.2d 582 (Pa. Super. 2000), overruled on other grounds,

Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002).2 The same point

holds true here. Appellant did not injure the officers, but she attempted to do

so. Her attempt justifies her conviction.

Appellant also claims that her acquittal on the charge of DUI requires

reversal of her aggravated assault conviction. We disagree. Our Supreme

Court held in Commonwealth v. Biagini, 652 A.2d 492 (Pa. 1995), that

physical resistance to police officers is prohibited by statute, even when an

underlying arrest is unlawful. Id. at 497. Under Biagini, Appellant’s acquittal

____________________________________________

2Mouzon overruled Petaccio’s resolution of a discretionary sentencing issue
not relevant here.

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J-S49024-19

on the underlying charge of DUI did not excuse her violent conduct towards

the police officers.3 Id.

Turning to Appellant’s conviction for resisting arrest, the Commonwealth

must prove that “with the intent of preventing a public servant from effecting

a lawful arrest or discharging any other duty,” the defendant “create[d] a

substantial risk of bodily injury to the public servant or anyone else, or

employ[ed] means justifying or requiring substantial force to overcome the

resistance.” 18 Pa.C.S.A. § 5104 (emphasis added). We emphasize “or” to

underscore that the conditions in this statute are disjunctive.

The legislature modeled Section 5104 after Section 242.2 of the Model

Penal Code. Interest of Barry W., 621 A.2d 669, 674 (Pa. Super. 1993).

Section 242.2 “covers physical interference in a host of circumstances in which

public servants discharge legal duties other than arrest. These include, for

example, a policeman executing a search warrant, a fireman putting out a

blaze, a forest or agricultural official making required inspections, an election

official monitoring balloting, and the like.” Id.

The evidence satisfies Section 5104’s element of “discharging any other

duty.” The trial court wrote that when Officer Corcoran stopped Appellant’s

car for the Motor Vehicle Code violation, in order to protect himself, he had

____________________________________________

3 Although the validity of Appellant’s conviction did not rise or fall on the
officers’ conduct, it deserves mention that their conduct towards her was
entirely proper.

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J-S49024-19

the authority to order her to exit the car without additional probable cause or

reasonable suspicion. In our view, Officer Corcoran had a better reason4 for

ordering Appellant out of the car: he was “discharging [his] duty” to test

whether Appellant was under the influence of alcohol or a controlled

substance. 18 Pa.C.S.A. § 5104.

Field sobriety testing is proper when the officer has reasonable suspicion

that the driver is under the influence of alcohol or a controlled substance.

Commonwealth v. Cauley, 10 A.3d 321, 327 (Pa. Super. 2010) (police

officer had reasonable suspicion to detain defendant and conduct field sobriety

tests, even though officer did not witness any motor vehicle violations or

observe anything remarkable about the way defendant operated his vehicle,

where, after parking his vehicle, defendant approached officer and asked why

officer was at that particular location, officer smelled a strong odor of alcohol

on defendant’s breath and observed that his eyes were bloodshot). We think

it self-evident that field sobriety testing falls within the scope of Section 5104’s

“other duties” element as one of the many “circumstances in which public

servants discharge legal duties other than arrest.” Barry W., 621 A.2d at

674.

Officer Corcoran stopped Appellant because she was driving without

using her headlights at approximately 2:45 in the morning. He asked if she

____________________________________________

4See Wilson v. Plumstead Tp. Zoning Hearing Board, 936 A.2d 1061,
1065 n.3 (Pa. 2007) (appellate court may affirm “on any ground”).

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J-S49024-19

had identification, and she replied that she did not have a license. He asked

again, and Appellant refused to answer. Appellant slurred her speech and had

slow reaction time as well as a thousand yard stare. This evidence gave Officer

Corcoran reasonable suspicion to direct Appellant to leave the car for field

sobriety testing. Cauley, 10 A.3d at 327.

The evidence further demonstrates that Appellant intended to obstruct

the officers’ performance of duties by “employ[ing] means justifying or

requiring substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.

Instead of exiting the car at Officer Corcoran’s direction, Appellant refused to

move, requiring Officer Corcoran and Officer Michels to use physical force to

extricate her from the vehicle. She violently resisted the officers by grabbing

the steering wheel with her right hand, placing her right leg between the door

jamb to wedge herself in, and kicking the officers repeatedly as they pulled

her out of the car. Her acts “justif[ied] and require[ed] substantial force to

overcome [her] resistance.” Id.; Commonwealth v. Coleman, 19 A.3d

1111, 1118 (Pa. Super. 2011) (evidence sufficient to support conviction for

resisting arrest; robbery suspect, who had been lawfully seized, struggled with

officer, when officer attempted to remove his hand from his pocket, and struck

officer with his shoulders, while cursing and telling the officer to get off of

him); Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)

(defendant’s use of passive resistance requiring substantial force to overcome

provided sufficient evidence for upholding her conviction for resisting arrest;

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officer testified that she struggled to pull defendant apart from her husband

with whom defendant had interlocked her arms and legs, and although officer

verbally commanded defendant several times to put her hands behind her

husband’s back, she refused to obey and held her arms tightly beneath him,

and officer testified that her attempts to restrain couple to place them under

arrest left her exhausted); Commonwealth v. Clark, 761 A.2d 190, 193–94

(Pa. Super. 2000) (evidence sufficient where appellant “took a fighting

stance,” forced police to chase him, and engaged in struggle during which

officer had to roll him onto ground to arrest him).

The fact that the jury acquitted Appellant of DUI does not warrant

reversal of her conviction for resisting arrest. Section 5104 does not require

the Commonwealth to obtain a conviction on an underlying charge; it simply

requires proof that the officer was “effecting a lawful arrest” or “discharging

any other duty.” Id. For this reason, and for the other reasons provided

above, the evidence was sufficient to sustain Appellant’s conviction for

resisting arrest.

Next, Appellant argues that her convictions are against the weight of

the evidence. We agree with the trial court that Appellant waived this issue.

Under Pa.R.Crim.P. 607, the defendant must object to the weight of the

evidence via written motion before sentencing, during the sentencing hearing

or in a post-sentence motion. “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

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J-S49024-19

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004).

Appellant failed to file a written objection to the weight of the evidence prior

to sentencing. She also failed to raise an objection to the weight of the

evidence during sentencing or via post-sentence motions. Accordingly, she

waived this objection.

Finally, Appellant argues that the trial court abused its discretion by

sentencing her to 11½—23 months’ imprisonment for aggravated assault and

a concurrent sentence of 2—23 months on resisting arrest, since the jury

acquitted her of the underlying charge of DUI. The trial court correctly

determined that (1) Appellant waived this issue by failing to raise it during

sentencing or in post-sentence motions, and (2) even if she preserved this

issue, the court properly considered all relevant factors under 42 Pa.C.S.A. §

9721(a), including the protection of the public, gravity of the offense and

Appellant’s rehabilitative needs. Trial Court Opinion, 1/10/20, at 9-12.

Therefore, we adopt the trial court’s opinion as our own on this issue. In any

future filings with this or any other court addressing this ruling, the filing party

shall attach a copy of the trial court opinion.

Judgment of sentence affirmed. Jurisdiction relinquished.

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J-S49024-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2020

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 Circulated 03/27/2020 03:21 PM

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

: CHESTER COUNTY, PENNSYLVANIA
VS.
CRIMINAL ACTION

TAKEESHA LOVELACE : NO. CP-15-CR-0001288-2018

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, on behalf of the
Commonwealth of Pennsylvania
Thomas P. McCabe, Esquire, on behalf of Defendant

OPINION

Defendant appeals from the judgment of sentence entered in this matter on

November 30, 2018, following a trial and conviction for aggravated assault of a polNe officer

and resisting arrest or other law enforcement. We write in support of judgment in accordance

with Pa.R.A.P. 1925(a).

PROCEDURAL HISTORY

On August 28, 2018, following a jury trial, Defendant was found guilty of

aggravated assault and resisting arrest or other law enforcement, and not guilty of driving under

the influence of a controlled substance. Defendant was also found guilty of the summary

offenses of driving while operating privilege is suspended or revoked and operating a vehicle

without a head lamp system. Defendant was found not guilty of the summary offense of careless

driving,

Defendant was sentenced on November 30, 2018 to 11 '/2 to 23 months

incarceration with 5 years probation consecutive, on the charge of aggravated assault; 2 to 23

The summary offenses were disposed of by the undersigned, sitting without a jury.
months incarceration for resisting arrest, to be served concurrent with the sentence for

aggravated assault; and the mandatory minimum of 90 days incarceration for driving while

operating privilege is suspended or revoked, related to driving under the influence of alcohol, to

be served concurrent with the sentence for aggravated assault. Defendant did not file post

sentence motions. Defendant timely filed a Notice of Appeal on December 28, 2018.

On or about February 26, 2019, the Court filed an Opinion with the Superior

Court, in accordance with Pa.R.A.P. 1925(a). In a Memorandum decision filed October 11,

2019, the Superior Court remanded the matter to the trial court to conduct a hearing concerning

whether Defendant knowingly, intelligently and voluntarily waived her right to appellate

counsel. By Order dated October 17, 2019, following an on -the -record colloquy wherein

Defendant informed the Court, under oath, that she did not want to waive her right to counsel on

direct appeal, Thomas P. McCabe, Esquire was appointed to represent Defendant on direct

appeal.

On December 11, 2019, the Superior Court ordered the Court to order the filing of

a supplemental Pa.R.A.P. 1925(b) concise statement from Defendant. Defendant timely filed her

supplemental Concise Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P.

1925(b) on January 2, 2020. We write in support of judgment in accordance with Pa.R.A.P.

1925(a).

DISCUSSION

In her Concise Statement of Errors Complained of on Appeal filed

January 2, 2020, Defendant essentially complains that the jury's verdict was against the weight

of the evidence; there was insufficient evidence to support the jury's verdict; and the Court

abused its discretion in sentencing Defendant.

2
 Defendant has failed to properly preserve her first error alleging that the verdict

was against the weight of the evidence. Pursuant to Pa.R.Crim.P. 607,

(A)A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for new trial:
(I) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post -sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). "[A] challenge to the weight of the evidence must be raised with

the trial judge or it will be waived." Comment, Pa.R.Crim.P. 607. Where the trial court

addresses a weight of the evidence claim in its opinion pursuant to Pa.R.A.P. 1925(a), if the issue

was not raised in a post -sentence motion, it is waived. See, Commonwealth v. Thompson, 93

A.3d 478 (Pa.Super. 2014) (claim addressing weight of the evidence waived where it was raised

for the tirst time in Pa.R.A.P. 1925(b) statement, even though trial court addressed issue in its

opinion). Defendant did not file post -sentence motions and first raised this claim in her

Statement of Errors Complained of on Appeal. Therefore, Defendant has waived this claim on

appeal.

In her second allegation of error, Defendant alleges that the evidence was

insufficient to allow the jury to find her guilty of aggravated assault of a police officer and

resisting arrest, when Defendant was acquitted of driving under the influence, out of which the

aggravated assault and resisting arrest charges stem. In reviewing a sufficiency of evidence

claim, the Court views the evidence in the light most favorable to the Commonwealth as the

verdict winner to determine whether there is sufficient evidence to enable the jury to find every

element of the crime beyond a reasonable doubt. Commonwealth v. Vargas, 108 A.3d 858, 867-

68 (Pa.Super. 2014) (citations omitted). The facts and circumstances established by the

3
Commonwealth need not preclude every possibility of innocence. Id. The credibility of the

witnesses and the weight of the evidence are for the jury to determine. Id.

In order to prove aggravated assault, the Commonwealth must prove that the

defendant "attempt[ed] to cause or intentionally or knowingly caused bodily injury to [an]

officer[ ]...in the performance of duty. 18 Pa.C.S. § 2702(a)(3)." Commonwealth v. Rahman, 75

A.3d 497, 501 (Pa.Super. 2013). Bodily injury is defined as "[i]mpairment of physical condition

or substantial pain." 18 Pa.C.S.A. § 2301.

[l]n a prosecution for aggravated assault on a police officer[,] the
Commonwealth has no obligation to establish that the officer
actually suffered a bodily injury; rather, the Commonwealth must
establish only an attempt to inflict bodily injury, and this intent
may he shown by circumstances which reasonably suggest that a
defendant intended to cause injury.

Commonwealth v. Brown, 23 A.3d 544, 560 (Pa.Super. 2011) (emphasis included), citing,

Commonwealth v. Marti, 779 A.2d 1177, 1183(Pa.Super. 2001). Intent may be shown by

circumstances suggesting that the actor intended to cause bodily injury. Commonwealth v.

Polston, 420 Pa.Super. 233, 616 A.2d 669 (1992), enc. den., 534 Pa. 638, 626 A.2d 1157

(1993). "A person acts intentionally with respect to a material element of an offense" if "it is his

conscious object to engage in conduct of that nature or to cause such a resul[t]." 18 Pa.C.S.

§ 302(b)( I )(i).

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.

4
18 Pa.C.S.A. § 5104. "[T]he provision of 18 Pa.C.S.A. § 5104 are clearly disjunctive."

Commonwealth v. Karl, 476 A.2d 908, 911 (Pa.Super. 1984). In order to be convicted under the

first part of Section 5104, there must be a lawful arrest. Id. However, a defendant can be

convicted under the second part of Section 5104 by preventing a public servant from

"discharging any other duty". Id. Section 5104 was modeled after Section 242.2 of the Model

Penal Code. In Interest of Barry W., 423 Pa.Super. 549, 557-558, 621 A.2d 669, 674 (1993).

`Section 242.2 covers physical interference in a host of
circumstances in which public servants discharge legal duties
other than arrest. These include, for example, a policeman
executing a search warrant, a fireman putting out a blaze, a forest
or agricultural official making required inspections, an election
official monitoring balloting, and the like'

In Interest of Barry W., at 558, 621 A.2d at 674 (emphasis included) (citations omitted).

Resisting arrest does not require serious bodily injury or actual injury to the arresting officer.

Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super. 1989). Sufficient evidence of resisting arrest

may exist where "the arrestee's actions created a substantial risk of bodily injury to the arresting

fficer." Id.

The testimony of Officer Ryan Corcoran and Corporal Kenneth R. Michels, Jr.,

as well as the video recording from Officer Corcoran's police vehicle and the body camera video

from Officer Corcoran and Corporal Michels establish both of these crimes beyond a reasonable

doubt. At approximately 2:45 a.m. on February 26, 2017, Officer Corcoran was on patrol duty

as an officer of the Coatesville Police Department when he observed a midsize sedan traveling

east in the 1000 block of East Lincoln Highway in Coatesville, Chester County, with no

headlights. (N.'1'. 8/28/2018, 6-7). Officer Corcoran pulled the vehicle over, approached the

vehicle and asked the driver for her license. (N.T. 8/28/2018, 8). The driver of the vehicle,
identified by Officer Corcoran as Defendant, stated she did not have a license. (N.T. 8/28/2018,

8).

Officer Corcoran then returned to his police vehicle to remove his jacket in order

to expose his body camera. (N.T. 8/28/2018, 29). Upon returning to Defendant's vehicle,

Officer Corcoran again attempted to obtain identification from Defendant. (N.T. 8/28/2018, (9-

10). Defendant refused to answer and Officer Corcoran observed that Defendant had a distinct

slur in her speech, her reaction time was slow and she had a "1000 yard stare". (N.T. 8/28/2018,

10). Officer Corcoran believed Defendant was under the influence of alcohol or drugs and

wanted Defendant to exit the vehicle in order to make further observations and insure that

Defendant did not attempt to drive away. (N.T. 8/28/2018, 10-11; 16).

Despite giving Defendant many opportunities, Defendant did not voluntary exit

her vehicle. Therefore, Officer Corcoran and Corporal Michels, who had arrived as back-up,

were forced to physically remove Defendant from her vehicle. (N.T. 8/28/2018, 16). When

Officer Corcoran took Defendant's arm in order to remove her from the vehicle, Defendant

propped her foot into the door jamb in order to wedge herself into the vehicle. (N.T. 8/28/2018,

17). Defendant heavily resisted the officers' attempts to remove her from the vehicle, yelling

profusely, fighting and kicking the officers. (N.T. 8/28/2018, 18; 20). It took the officers

approximately 2 minutes to remove Defendant from her vehicle. (N.T. 8/28/2018, 17). Officer

Corcoran removed Defendant from her vehicle and placed her in handcuffs for the safety of the

officers as well as Defendant herself (N.T. 8/28/2018, 18).

While Officer Corcoran was removing Defendant from her vehicle, Defendant

became limp and refused to walk to the police vehicle. (N.T. 8/28/2018, 18; 52). Defendant

kicked Officer Corcoran in the shin repeatedly. (N.T. 8/28/2018, 19). Defendant also kicked

6
Officer Corcoran's hand into the cage in the police vehicle, causing his knuckles to swell. (N.T.

8/28/2018, 19). Although Officer Corcoran testified that his hand hurt, he did not seek medical

attention and his hand was not broken. (N.T. 8/28/2018, 19; 53). Officer Corcoran can be heard

asking Defendant to stop kicking him and saying "ow" when Defendant kicked his hand,

although Defendant is not seen kicking Officer Corcoran on the body camera video. (N.T.

8/28/2018, 33-34; 72; Exhibit C-2).

Corporal Michels testified that he observed Defendant fail to provide the

requested documents to Officer Corcoran and failed to voluntarily exit her vehicle when asked

several times to do so. (N.T. 8/28/2018, 65-66). Corporal Michels testified that Defendant was

actively resisting being removed from her vehicle, grabbing the steering wheel with her right

hand and placing her right leg between the doorjamb. (N.T. 8/28/2018, 66). Corporal Michels

testified that Defendant kicked both he and Officer Corcoran while they attempted to remove her

from her vehicle. (N.T. 8/28/2018, 67).

Although Defendant was acquitted of driving under the influence, that does not

bar the jury from finding Defendant guilty of resisting arrest. One of the essential elements of

the crime charged under Section 5104 of the Crimes Code is that there must be a lawful arrest.

Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995). While Defendant filed a Motion to

Suppress alleging the stop was illegal and the arrest was unlawful, that motion was withdrawn.

(N.T. 7/30/2018, 2). Therefore, Defendant concedes that the stop and the arrest were lawful.

The evidence of record, read in the light most favorable to the Commonwealth,

establishes that Defendant acted with the "intent of preventing a public servant" from making a

lawful arrest by creating a substantial risk of bodily injury by employing "means justifying or

requiring substantial force to overcome the resistance." Officer Corcoran stopped Defendant

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because she was driving without using her headlights at approximately 2:45 in the morning.

Officer Corcoran had the authority to ask Defendant to exit the lawfully stopped vehicle without

any additional probable cause or reasonable suspicion. See, Commonwealth v. Rodriguez, 695

A.2d 864, 868 (Pa.Super. 1997), citing, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54

L.Ed.2d 331 (1977) (police officer permitted to request driver of a lawfully stopped vehicle to

exit the vehicle without any additional probable cause or reasonable suspicion to protect safety of

officer). Officer Corcoran asked Defendant twice for her identification and asked her numerous

times to exit the vehicle. Defendant failed to respond. When Defendant failed to exit the

vehicle, Officer Corcoran removed her from the vehicle. Officer Corcoran required the

assistance of Corporal Michaels to remove Defendant from her vehicle and place her in his

police vehicle. Defendant reacted by continually kicking the officer until she was placed into the

police vehicle. It is irrelevant whether Officer Corcoran sustained serious bodily injury or actual

injury.

Defendant refused to exit her vehicle and resisted Officer Corcoran's attempts to

remove her from her vehicle. Defendant kicked Officer Corcoran as he attempted to remove her

from her vehicle. Defendant continued to kick Officer Corcoran as he was attempting to place

her into his police vehicle. it is irrelevant whether Officer Corcoran sustained serious bodily

injury or actual injury.

The evidence of record read in the light most favorable to the Commonwealth

sufficiently establishes aggravated assault of a police officer. Unlike the charge of resisting

arrest, the lawfulness of an arrest is irrelevant to the charge of aggravated assault of a police

officer. Biagini, at 34, 655 A.2d at 498.

[I]f the police effectuate an arrest and the arrestee physically resists
the officer, and subsequently the arrest is deemed to be without

8
 probable cause, nevertheless, the arrestee is guilty of aggravated
assault because the officer was within the "performance of duty"
when effectuating the arrest.

Id. To sustain a conviction for aggravated assault of a police officer, the Commonwealth need

only establish Officer Corcoran suffered bodily injury as a result of Defendant's conduct while

he was "in the performance of duty". Officer Corcoran stopped Defendant based upon a motor

vehicle violation. When Defendant failed to produce identification requested by Officer

Corcoran, he asked Defendant to exit the vehicle. When Defendant refused to exit the vehicle,

Officer Corcoran attempted to remove her from the vehicle and was repeatedly kicked in the shin

by Defendant. Defendant also kicked Officer Corcoran's knuckles, causing them to swell.

Although Officer Corcoran's hand was not broken and he did not seek medical attention, it is not

the Commonwealth's burden to establish actual bodily injury. It is sufficient that the

Commonwealth established an attempt to cause bodily injury, through circumstances reasonably

suggesting that Defendant intended to cause injury. Brown, supra.

Defendant's third allegation of error states in pertinent pail, "the Trial Court

abused its discretion in sentencing the Appellant to a period of incarceration...of 11 'A to 23

months on the Aggravated Assault charge, 2 to 23 months on the Resisting Arrest charge...." In

the event this allegation of error involves the discretionary aspects of the sentence, this claim has

been waived. A challenge to the discretionary aspects of a sentence is not automatically

reviewable as of right. Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008).

Although Defendant's appeal was timely filed, Defendant failed to preserve any claim regarding

sentencing when the sentence was imposed or in a post -sentence motion.

that "where the issues raised assail the trial
It is well -established
court's exercise of discretion in fashioning the defendant's
sentence, the trial court must be given the opportunity to
reconsider the imposition of the sentence either through the

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 defendant raising the issue at sentencing or in a post -sentence
motion." Commonwealth v. Tejada, 107 A.3d 788, 798 (Pa.Super.
2015).

Commonwealth v. Cramer, 195 A.3d 594, 610 (Pa.Super. 2018). The failure to raise errors

regarding the trial court's discretion in imposing a sentence either during sentencing or through

post -sentence motions results in a waiver of these claims on appeal. Id. (citations omitted).

In the event this allegation of error involves the legality of the sentence, we find

this allegation of error to he without merit. In determining the sentence to be imposed, "the court

shall follow the general principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs of the defendant."

42 Pa.C.S.A. § 9721(b).

The court is not required to parrot the words of the Sentencing
Code, stating every factor that must be considered under Section
9721(b). However, the record as a whole must reflect due
consideration by the court of the statutory considerations
[enunciated in that section]. Commonwealth v. Feucht, 955 A.2d
377, 383 (Pa.Super. 2008). See also, Commonwealth v. Malovich,
903 A.2d 1247, 1253 (Pa.Super. 2006).

Coulverson, at 145-46. A defendant's punishment "must account for the rehabilitative need of

the defendant and the companion interest of society reflected in section 9721(b)." Id., at 148.

Where the court imposes a sentence for a felony, the court shall disclose in open court at the time

of sentencing the reason or reasons for the sentence imposed. Id.

The court shall consider the sentencing guidelines in determining the appropriate

sentence. 42 Pa.C.S.A. § 9721(b); 204 Pa.Code § 303.1(a). The sentencing guidelines arc not

mandatory. Antidormi at 760 (citations omitted). In imposing a sentence, the court is also

required to consider the circumstances of the offense as well as the character of the defendant.

to
Antidormi, at 761. "In considering these factors, the court should refer to the defendant's prior

criminal record, age, personal characteristics and potential for rehabilitation. [Commonwealth v.

McClendon, 403 Pa.Super. 467, 589 A.2d 706, 712-13 (1991) (en bane) (quoting Common-

wealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158, 159 (1985))." Id. A sentence will not be

disturbed where the court's reasons for the sentence, placed on the record, demonstrate that the

court weighed the sentencing guidelines with the facts of the crime and the defendant's character

in a meaningful fashion. Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003).

Defendant was sentenced on November 30, 2019 to 11 1/2 to 23 months

incarceration, with 5 years probation consecutive, on Count 2, aggravated assault of a police

officer. Defendant was sentenced on Count 3, resisting arrest, to 2 to 23 months incarceration, to

be served concurrently with the sentence on Count 2. Finally, Defendant was sentenced to a

mandatory minimum sentence of 90 days incarceration for driving with a suspended license, to

be served concurrently with Count 2.

Defendant has a prior record score of 5. Defendant's lengthy criminal history

dates back to 1998 wherein she was informally adjudicated as a juvenile. (N.T. 11/29/2018, 4).

Defendant's adult record began in 1999 and includes convictions for disorderly conduct; retail

theft; underage drinking, public drunkenness; summary harassment; misdemeanor disorderly

conduct; access device fraud; driving under the influence and endangering the welfare of

children. (N.T. 11/29/2018, 4-5). Defendant has an offense gravity score of 6 on the aggravated

assault charge and 2 on the resisting arrest charge. The guidelines provide a minimum range of

21 to 27 months incarceration on the aggravated assault charge, plus or minus 6 months and 1 to

9 months incarceration on the resisting arrest charge, plus or minus 3 months. (N.T. 11/30/2018,

5-6). The Commonwealth sought a state sentence within the guideline range on the aggravated
assault charge and the resisting arrest charge, as well as the mandatory minimum sentence for

driving with a suspended license. (N.T. 11/29/2018, 8-9).

The reasons for the sentence were fully set forth by the Court on November 30,

2018 in open court at the sentencing. The Court fully considered the factors set forth in 42

Pa.C.SA. § 9721(b), including protection of the public, gravity of the offense, and rehabilitative

needs of the defendant. (N.T. 11/30/2018, 37-43). We hereby incorporate the transcript of the

November 30, 2018 sentencing as the Opinion of the Court for the purposes of the appeal on this

issue.

For the foregoing reasons, we respectfully submit that Defendant's allegations are

without merit and the appeal should be denied.

13Y THE COURT:

J.

Date: 1 10

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