Commonwealth v. Wertelet

CAVANAUGH, Judge,

dissenting.

Because my review of the record reveals that the Commonwealth produced sufficient evidence to establish each element of the offenses of resisting arrest and aggravated assault, I respectfully dissent.

With respect to the resisting arrest conviction, the majority concludes that this conviction cannot stand because the arrest of appellant was unlawful. It cites Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995) for the proposition that the lawfulness of an arrest is made from an after-the-fact determination of whether the conduct supporting the arrest constituted the crime(s) charged.

While I agree that Biagini holds that a conviction for resisting arrest will only stand where the underlying arrest is lawful, I disagree that the lawfulness of the arrest is to be determined from an after-the-fact examination of a defendant’s conduct. The legality of any arrest is subject to review and this review will take place, of necessity, some time after the arrest has occurred. This fact alone does not authorize the court to consider facts unknown to police or to disregard facts erroneously believed by them in good faith to be true. Biagini clearly states that “a determination of the lawfulness of the underlying arrest necessitates a legal conclusion that the arresting officer acted with authority and probable cause.” Id. at 32, 655 A.2d at 497. Probable cause for a warrantless arrest exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Quites, 422 Pa.Super. 153, 166-67, 619 A.2d 291, 298 (1993)(emphasis added). In determining whether probable cause existed for a warrantless arrest in a particular situation, a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer. Id. (emphasis added).

In Biagini, the supreme court concluded that no probable cause existed to support defendant’s arrest because he committed no action which justified his immediate apprehension. Defendant’s actions consisted of nothing more than refusing to cooperate with a police officer’s investigation and the use of loud and vulgar language while standing on his own porch. Such actions would not justify a person of reasonable caution in believing that defendant had committed or was in the process of committing a crime.

Here, unlike Biagini, appellant’s conduct would justify a person of reasonable caution in believing that she was in the process of committing a crime. Two state troopers accompanied an Alltell crew to appellant’s property. The crew was attempting to bury telephone lines pursuant to a right-of-way which Alltell possessed across appellant’s property. The troopers were made aware of *214these circumstances and possessed a good faith belief that Alltell was acting within its rights. When appellant physically interfered with the Alltell work and continued to act disruptiveness, despite requests to desist from both the crew and the troopers, the troopers possessed the necessary probable cause to effectuate a lawful arrest.

With respect to the offense of aggravated assault, the majority concludes that this conviction cannot stand because the trooper whom she kicked did not sustain “bodily injury.” It cites Commonwealth v. Kirkwood, 360 Pa.Super. 270, 520 A.2d 451 (1987) for the proposition that bodily injury does not encompass temporary hurts or pains brought about by trivial contacts. Kirkwood involved a situation in which the victim received barely discernible injuries from her partner during a “fast dance” at a tavern. This type of de minimus injury resulting from a trivial infraction is not what took place in the present case. Here, appellant was struggling with two state troopers as they attempted to place her under arrest. During this melee, appellant kicked one of the troopers twice in the leg. The trooper described the pain as “similar to bumping your shin on a coffee table in the dark when you’re walking through your house.” The trooper qualified this description by stating the pain he experienced was substantial and that it lasted for the rest of his shift. Viewing this evidence, as we must, in the light most favorable to the Commonwealth as verdict winner, I would conclude that there was sufficient evidence to establish that the trooper suffered bodily injury as a result of being kicked by appellant. Cc. Biagini, supra (defendant guilty of aggravated assault where officer suffered bodily injury when punched in mouth by defendant); Commonwealth v. Barry W., 540 Pa. 22, 655 A.2d 492 (1995) (conviction for aggravated assault upheld where officer suffered bodily injury when pushed into parked car by defendant).

Because my review of the record and pertinent caselaw reveals that the Commonwealth produced sufficient evidence to establish each element of the crimes of resisting arrest and aggravated assault, I would affirm the judgment of sentence.