Com. v. Dixon, T.

J-A07012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD JOHN DIXON :
:
Appellant : No. 947 MDA 2019

Appeal from the Judgment of Sentence Entered February 6, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002899-2016

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 18, 2020

Appellant, Todd John Dixon, appeals from the judgment of sentence

entered on February 6, 2019, as made final by the denial of Appellant’s

post-sentence motion on May 29, 2019. We vacate Appellant’s disorderly

conduct conviction, vacate Appellant’s judgment of sentence, and remand for

resentencing.

During Appellant’s March 27, 2018 bench trial, Police Officer Riccardo

Godino testified that, on August 6, 2016, he was working as a police officer

for the South Abington Township Police Department.1 N.T. Trial, 3/27/18, at

17-18. That day, Officer Godino was on-duty and working a special detail to

aid the St. Benedict’s Church Picnic. He testified:

____________________________________________

1 At the time of trial, Officer Godino testified that he was a cadet with the
Pennsylvania State Police. N.T. Trial, 3/27/18, at 17.
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Four officers are typically assigned the duties of foot patrol
and directing traffic. Officers create a temporary crosswalk
by utilizing two marked patrol units with their emergency
lights activated. . . . And officers are in full uniform. We
wear the high visibility traffic vests. And two officers will
typically cross families and people coming in and out of the
bazaar across Newton Ransom Boulevard. The other two
officers at that time are on foot patrol in the actual church
picnic patrolling the grounds on foot and just ensuring officer
presence for the safety and concern of anybody who is
attending.

Id. at 19-20.

Officer Godino testified that, at the time he encountered Appellant, he

and Officer Leonard Harvey were directing traffic and Officers Justin Brown

and Anthony Percival were “coming up to relieve us.” Id. at 20. He testified:

I [had just] cross[ed] a family from the church side of the
road to the opposite side of the road. . . . At the time in
question, [] the family was thanking me verbally for our
assistance in safely crossing them across the road. . . . I had
traffic stopped on Newton Ransom Boulevard which is a
[45-mile-per-hour] road. . . . [Newton Ransom Boulevard]
is a main road. It’s a highway. I was in the middle of this
highway with the intention[] of stopping any and all traffic to
safely cross people. . . .

[O]nce the family was completely across the road, I []
directed my attention to another couple that was now
crossing in the opposite direction going into the church picnic.
When I directed my attention to this couple, I had noticed at
the time it was [Appellant] and his wife. We made eye
contact, [Appellant] and I. And I [] gave a nod with my head
as if to say hello or acknowledge[] a hello. And [Appellant]
at that point also, I assume, noticed it was [me]. [Appellant]
recognized me. And he extended his hand out to me and
gave me the middle finger. He also mouthed the words
[“]fuck you[”] to me. . . .

So, once the gesture was made to me . . . and he mouthed
the words to me, I simply continued to look at [Appellant]

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and I explained to him verbally[,] I said, “Sir, that’s not very
professional. This is a family establishment and that would
constitute disorderly conduct, don’t do that.” The second I
had finished that sentence, [Appellant] rapidly and very
aggressively came at me. He approached me in a manner in
which, I’m still in the middle of the roadway, all of my
attention was directed at [Appellant] at the time. [Appellant]
got himself and his body and his face within one inch of my
face . . . in what I took at the time as a possible fighting
stance or manner. . . . And he proclaimed with putting his
finger in my face[,] saying, “Do you remember me asshole?
Well, fuck you.” At that point, I was in fear for not just my
safety, but for the safety of [Appellant]. I was concerned. I
wasn’t too sure what his intentions were at the time. And
quite frankly, it happened so rapidly, I wasn’t really sure what
his intentions were.

Id. at 20-23 and 49-50.

Officer Godino testified that, because of Appellant’s actions:

All of my attention was focused on [Appellant]. . . . I lost
the ability to concentrate on the approaching traffic from in
front of me and the traffic from behind me and all of my
attention was now directed at [Appellant]. And my official
job of stopping traffic or ensuring the safety of others to cross
was not able to be done at that point.

Id. at 23.

He further testified:

Because of the fact that I could not concentrate on anything
around me and I wanted to ensure that both [Appellant] and
I were out of the danger zone of being in the middle of that
highway, I [] told [Appellant], I said, “Let’s go, get off the
roadway.” And at that time, [Appellant] said, “Fuck you, I’m
not going anywhere.” And he more or less continued to carry
on with his antics. So, I then said to [Appellant,] “Let’s go,
you’re under arrest.”

Id. at 23-24.

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As Officer Godino testified, when he placed Appellant under arrest, he

put his hands on Appellant’s shoulder and “grabbed [Appellant’s] wrist in an

attempt to put it behind his back and direct him off the roadway.” Id. at 24.

However, Officer Godino testified:

When I put my hands on [Appellant] in an attempt to guide
him off the roadway . . . , [Appellant] attempted to pull away
from me. He started by pulling his arms and his shoulders
away from me in which I then had to tighten my grip to
ensure that he did not pull away from me entirely and I lost
complete control. [Appellant] then, if you could imagine,
thrusted his hip and his groin area away from me as to try to
gain the control and be able to pull away from me. The faster
[Appellant] went in an attempt to run away from me or flee
or make me lose grasp of him, the quicker I had to go. And
I was more or less behind him catching up to his pace. . . .

[The other officers saw] the struggle I was having with
[Appellant]. In the attempt to [gain] control of [Appellant],
Officer[] Brown and Officer Harvey came . . . to assist me.
One officer was on each side of me and attempted to pull
[Appellant] by a shoulder and his lower arm in the area of his
elbow. And thankfully with the patrol car being there, it
ceased [Appellant’s] abilities to continue to run from police.

Id. at 24-25.

Officer Godino testified that, during the struggle, Appellant “did not

respond to any commands. Any commands that were given to him,

[Appellant] continued to just say, ‘Fuck you, I’m not going anywhere.’” Id.

at 25-26.

As Officer Godino testified,

We used [the police] vehicle as leverage. And I was trying
to gain enough control to be able to remove my handcuffs
from my duty belt and place them onto [Appellant] while the
other two officers held his arms in place for me. The issue

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though was [Appellant] was continuing to struggle and
resisting from us by actively and forcefully pulling his arms
from behind his back and trying to get them to the front of
his body. Officers had to maintain a high amount of control
with this because [] we weren’t sure what his actions were .
. . we weren’t sure if he was in an attempt to pull a weapon
from his waistband or swing at officers in a manner. So I was
able to get my handcuffs out while Officer Harvey and Officer
Brown assisted me. And handcuffs were eventually placed
on [Appellant] and secured behind his back in which time he
continued to fight and resist our attempt to gain control.

Id. at 26.

As Officer Godino testified, after Appellant was handcuffed, Appellant’s

wife walked back towards them and began recording the incident on her cell

phone. When Appellant saw his wife recording the incident, Appellant started

“just screaming uncontrollably and very loudly.” Id. at 28. The officers asked

Appellant whether anything was wrong and Appellant “did not respond

verbally in any way . . . [h]e just continued to scream.” Id. at 28-29. Further,

Officer Godino testified, Appellant then “dropped all of his weight . . . [h]e just

passively resisted by going limp and officers had to hold him up at this point.”

Id. at 30.

The officers called for Emergency Medical Technicians (“EMTs”) to

evaluate Appellant. Id. To aid the EMTs in evaluating Appellant, Officer

Godino eventually removed Appellant’s handcuffs. Id. at 31-32. Appellant

then cooperated enough to lie down onto the EMTs’ stretcher and enter the

ambulance, where volunteer Kelsey Landsiedel attempted to aid Appellant.

Id. at 32 and 86-89.

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Ms. Landsiedel testified that, once Appellant was placed on the

ambulance, the ambulance drove off towards the hospital. She testified that,

while in the back of the ambulance, she took Appellant’s vital signs and began

helping Appellant. Id. at 89-90. However, Appellant would not respond to

her inquiries. She testified that, since Appellant was unresponsive, she

performed a sternum rub. Id. at 90. As she testified, when she performed

the sternum rub:

[Appellant] lunged forward and swung his arm at me. I
moved back in the seat away from him. And he said, “I will
fucking kill you, don’t touch me, let me fucking tell you.” And
I said, “I was just trying to make sure you were okay. You
weren’t responding to me.” He was trying to get the seatbelt
that was under his chest. And I at that point yelled to the
driver to pull over, that we needed the police back because
the patient was being combative.

Id. at 90-91.

Officer Godino testified that he and Officer Brown were following the

ambulance in their patrol car when “the 911 dispatcher . . . came over the

radio and . . . said that the [ambulance] is going to be pulling [over] . . . due

to [Appellant] becoming combative.” Id. at 32-33. As Officer Godino

testified, after the vehicles pulled over, he and Officer Brown

entered the ambulance through the rear. We opened up the
two barn style doors and we could observe [Appellant] now
flailing about and trying to wiggle himself out of . . . the
restraint system that the [EMTs use] on a stretcher to
prevent somebody from falling out of it. And [Appellant] was
actively trying to free himself of this stretcher and he was
screaming profusely. And when [Appellant] saw [me] and
Officer Brown enter the ambulance, he said, “Oh, fuck you
guys.” And continued to scream and yell. Nothing very

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specific in nature, but continued to be disorderly within the
ambulance. So, . . . I told [Appellant], “At this time, due to
your actions, I have to put the handcuffs back on you.” And
at that time, I did. I took the handcuffs out and I had to
secure [Appellant] in front. . . . And then, we assisted the
EMTs in resecuring [Appellant] with the straps that are on the
stretcher to try to prevent his movement from coming out of
the stretcher.

Id. at 33-34.

Officer Brown then stayed in the ambulance for the remainder of the

ride to the hospital. Id. at 34.

The Commonwealth charged Appellant with aggravated assault,

resisting arrest, and disorderly conduct.2 Following a bench trial, the trial

court found Appellant guilty of resisting arrest and disorderly conduct and not

guilty of aggravated assault. See Trial Court Decision, 10/18/18, at 33-34.

On February 6, 2019, the trial court sentenced Appellant to serve a term

of nine months of probation for the resisting arrest conviction and to serve a

consecutive term of nine months of probation for the disorderly conduct

conviction. N.T. Sentencing, 2/6/19, at 17. Following the denial of Appellant’s

post-sentence motion, Appellant filed a timely notice of appeal. Appellant

numbers five claims in his brief:

[1.] Did the Commonwealth present sufficient evidence at
trial to support [Appellant’s] disorderly conduct conviction?

[2.] Was [Appellant’s] conviction for disorderly conduct
against the weight of the evidence presented at trial?

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2 18 Pa.C.S.A. §§ 2702(a)(6), 5104, and 5503(a)(3), respectively.

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[3.] Did the Commonwealth present sufficient evidence at
trial that [Appellant] resisted arrest?

[4.] Was [Appellant’s] conviction for resisting arrest against
the weight of the evidence presented at trial?

[5.] Do [Appellant’s] convictions for disorderly conduct and
resisting arrest contravene public policy?

Appellant’s Brief at 5.

First, Appellant claims that the evidence was insufficient to support his

disorderly conduct conviction. We review Appellant's sufficiency of the

evidence challenge under the following standard:

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 [that of] 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
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.

Commonwealth v. Vargas, 108 A.3d 858, 867-868 (Pa. Super. 2014) (en

banc), quoting Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa.

Super. 2011) (en banc).

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Appellant was convicted of disorderly conduct under 18 Pa.C.S.A.

§ 5503(a)(3). This section declares:

(a) Offense defined.--A person is guilty of disorderly
conduct if, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he:

...

(3) uses obscene language, or makes an obscene
gesture[.]

18 Pa.C.S.A. § 5503(a)(3).

On appeal, Appellant claims that the evidence was insufficient to support

his disorderly conduct conviction under Section 5503(a)(3), as his language

and gesture to Officer Godino did not rise to the level of obscenity. Appellant’s

Brief at 19. We agree.

Our Supreme Court has explained:

When the judiciary is required to resolve an issue concerning
the elements of a criminal offense, its task is fundamentally
one of statutory interpretation, and its overriding purpose
must be to ascertain and effectuate the legislative intent
underlying the statute. Generally, the clearest indication of
legislative intent is the plain language of the statute itself. As
[the Pennsylvania Supreme Court has] stated:

To determine the meaning of a statute, a court must first
determine whether the issue may be resolved by
reference to the express language of the statute, which is
to be read according to the plain meaning of the words.
It is only when the words of the statute are not explicit
on the point at issue that resort to statutory construction
is appropriate. However, basic principles of statutory
construction demand that when the words of a statute are
clear and free from all ambiguity, the letter of it is not to
be disregarded under the pretext of pursuing its spirit,

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and legislative history may be considered only when the
words of a statute are not explicit.

Commonwealth v. Dellisanti, 876 A.2d 366, 369 (Pa.
2005). Moreover, every statute shall be construed, if
possible, to give effect to all its provisions.

Commonwealth v. Fedorek, 946 A.2d 93, 98-99 (Pa. 2008) (corrections

and some quotations and citations omitted).

Section 5503(a)(3) specifically prohibits the use of “obscene” language

or gestures, when the language or gestures are done “with [the] intent to

cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof.” 18 Pa.C.S.A. § 5503(a)(3). As this Court has explained, “for

purposes of [Pennsylvania’s] disorderly conduct statute prohibiting the use of

obscene language, language is obscene if it meets the test set forth in Miller

v. California, 413 U.S. 15 (1973).” Commonwealth v. McCoy, 69 A.3d

658, 665 (Pa. Super. 2013). Thus, language or gestures are obscene if they

satisfy the following elements:

(a) whether “the average person, applying contemporary
community standards” would find that the work, taken as a
whole, appeals to the prurient interest, (b) whether the work
depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.

Id., quoting Commonwealth v. Bryner, 652 A.2d 909, 912 (Pa. Super.

1995).

Here, the evidence demonstrates that Appellant communicated multiple

profanities to Officer Godino. However, giving a person the middle finger and

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telling a person “fuck you” in an antagonistic manner does not describe sexual

conduct and does not appeal to anyone’s prurient interest. See McCoy, 69

A.3d at 666 (the defendant shouted “fuck the police” multiple times during a

funeral procession for a fallen officer; the Superior Court held that the

evidence was insufficient to support the defendant’s disorderly conduct

conviction under Section 5503(a)(3) because “there is no evidence that the

chant was intended to appeal to anyone's prurient interest nor did it describe,

in a patently offensive way sexual conduct”). Thus, the evidence is insufficient

to support Appellant’s disorderly conduct conviction.3

Next, Appellant claims that the evidence is insufficient to support his

resisting arrest conviction.

A person commits the crime of resisting arrest “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. Thus, “Section 5104

criminalizes two types of conduct intended to prevent a lawful arrest: the

creation of a substantial risk of bodily injury to the officer or anyone else or

means justifying or requiring a substantial force to overcome.”

Commonwealth v. Soto, 202 A.3d 80, 95 (Pa. Super. 2018) (emphasis in

original). Further, as we have held, “a valid charge of resisting arrest requires
____________________________________________

3 Given our disposition, Appellant’s second numbered claim on appeal is moot.

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an underlying lawful arrest, which, in turn, requires that the arresting officer

possess probable cause.” Id. at 96 (quotations and citations omitted).

Appellant claims that the evidence is insufficient to support his resisting

arrest conviction because: 1) “[i]t was only after [Officer Godino placed

Appellant under arrest] that [Appellant] showed any signs of resistance;” 2)

“the trial record is devoid of any evidence that [Appellant’s] actions put the

officers at substantial risk of bodily injury;” 3) Appellant’s “apparent attempt

to flee does not constitute resisting arrest;” and, 4) Appellant’s underlying

arrest was unlawful. Appellant’s Brief at 28-29. Appellant’s claims fail.

Appellant’s first sub-claim contends that the evidence is insufficient to

support his resisting arrest conviction because he did not resist until after

Officer Godino placed him under arrest. Id. at 28. We do not understand

Appellant’s claim. Indeed, we have held that “a valid charge of resisting arrest

requires an underlying lawful arrest.” Soto, 202 A.3d at 96 (emphasis

added). Therefore, the fact that Appellant began resisting after he was placed

under arrest is a sine qua non of the crime of resisting arrest. Appellant’s first

sub-claim thus fails.

Next, Appellant claims that his resisting arrest conviction cannot stand

because he did not “put the officers [or anyone else] at substantial risk of

bodily injury.” Appellant’s Brief at 28. This claim is frivolous. As the trial

court explained: “[b]y precipitating a physical struggle in a temporary

crosswalk over a 45 mph highway, [Appellant] did create a substantial risk of

injury to [the officers] and the public patrons and families using the temporary

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crosswalk.” Trial Court Opinion, 10/18/18, at 19. Appellant’s claim to the

contrary is frivolous and, thus, fails.

Appellant’s third sub-claim contends that his “apparent attempt to flee

does not constitute resisting arrest.” Appellant’s Brief at 28. However, we

have already determined that the evidence is sufficient to support the

conclusion that Appellant’s actions “create[d] a substantial risk of bodily injury

to the” officers and the public. Thus, we need not consider whether the

evidence was also sufficient to support the alternate element of resisting

arrest – that Appellant “employ[ed] means justifying or requiring substantial

force to overcome the resistance.” See 18 Pa.C.S.A. § 5104; see also Soto,

202 A.3d at 95. Appellant’s third sub-claim is moot.

Finally, Appellant contends that his resisting arrest conviction must be

vacated because it was not supported by a valid underlying arrest. Appellant’s

Brief at 29. This claim fails.

Even though we have concluded that the evidence is insufficient to

support Appellant’s conviction for disorderly conduct under Section

5503(a)(3), this conclusion does not mean that Appellant’s arrest was

unlawful. To be sure, in this case there existed probable cause to arrest

Appellant for any number of crimes, including disorderly conduct under

Section 5503(a)(1).4 This is because: Appellant began swearing at Officer

____________________________________________

4 18 Pa.C.S.A. § 5503(a)(1) declares: “A person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or alarm, or recklessly

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Godino and then aggressively rushed at the officer while the officer was

on-duty and engaged in a job that required him to escort families across a

45-mile-per-hour highway; Officer Godino testified that, based upon

Appellant’s aggressive behavior, the officer feared for his safety; and, after

Officer Godino told Appellant to leave the middle of the highway, Appellant

said “Fuck you, I’m not going anywhere.” Appellant’s aggressive, violent, and

threatening actions – which occurred on a public highway and in the middle

of a public function – provided Officer Godino with probable cause to arrest

Appellant for (at a minimum) disorderly conduct under Section 5503(a)(1).5

As such, Appellant’s final sub-claim fails and we conclude that the evidence

was sufficient to support Appellant’s resisting arrest conviction.

Next, Appellant claims that his resisting arrest conviction was against

the weight of the evidence. This claim is waived, as Appellant’s post-sentence

motion merely presented a boilerplate challenge to the weight of the evidence.

See Appellant’s Post-Sentence Motion, 2/12/19, at 1-3; Commonwealth v.

Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (en banc) (holding: “a

____________________________________________

creating a risk thereof, he: (1) engages in fighting or threatening, or in violent
or tumultuous behavior.” 18 Pa.C.S.A. § 5503(a)(1).

5 Indeed, during trial, Appellant’s counsel admitted that there was sufficient
evidence to support Appellant’s conviction under Section 5503(a)(1). See
N.T. Trial, 3/27/18, at 124 (“And the disorderly conduct that he’s charged is
5503(a)(3). . . . If he was charged with 5503(a)(1) or 5503(a)(4),
there is no argument here. But the Commonwealth can’t get up here with
its charging document and take a square peg and try to ram it into a round
hold. They charged it.”) (emphasis added); see also id. at 124-130.

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post-verdict motion, [] that . . . ‘the verdict was against the weight of the

evidence,’ will preserve no issue for appellate review unless the motion goes

on to specify in what respect . . . why the verdict was against the weight of

the evidence”).

Finally, Appellant claims that his conviction for resisting arrest

contravenes public policy. Appellant’s Brief at 30. According to Appellant,

“[a]llowing law enforcement officers to arrest individuals who are merely

exercising their right to free speech under the First Amendment is an

outrageous result that should not be affirmed by” the Superior Court. Id.

This claim is frivolous.

In Chaplinsky v. New Hampshire, the United States Supreme Court

declared:

Allowing the broadest scope to the language and purpose of
the Fourteenth Amendment, it is well understood that the
right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or “fighting” words those which
by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
Resort to epithets or personal abuse is not in any proper
sense communication of information or opinion safeguarded
by the Constitution, and its punishment as a criminal act
would raise no question under that instrument.

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Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942) (citations,

footnotes, and some quotations omitted).

As was already explained above, the evidence in this case is sufficient

to support Appellant’s resisting arrest conviction.6 Certainly, in this case:

Appellant repeatedly swore at Officer Godino and then aggressively rushed at

the officer while the officer was on-duty and engaged in a job that required

him to escort families across a highway; Officer Godino testified that, based

upon Appellant’s aggressive behavior, the officer feared for his safety; after

Officer Godino told Appellant to leave the middle of the highway, Appellant

said “Fuck you, I’m not going anywhere;” and, after Officer Godino told

Appellant he was under arrest, Appellant began resisting the officer in the

middle of a highway, where the posted speed limit is 45 miles per hour.

Simply stated, Appellant’s aggressive actions in this case threatened to “incite

an immediate breach of the peace” and, thus, went far beyond the limits of

what the First Amendment protects. See id. As such, Appellant’s final claim

on appeal fails.

In conclusion, we vacate Appellant’s disorderly conduct conviction.

Further, since our decision may have disturbed the trial court’s sentencing

scheme, we remand the case for resentencing.

____________________________________________

6 We need not address this public policy issue as it relates to Appellant’s
disorderly conduct convictions as we are vacating that conviction.

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Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/18/2020

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