Com. v. Wright, T. (memorandum)
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J. S33003/14 NON-PRECEDENTIAL DECISION COMMONWEALTH OF PENNSYLVANIA v. TAMIR J. WRIGHT, Appellant SEE SUPERIOR COURT I.O.P. 65.37 : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2935 EDA 2013 Appeal from the Judgment of Sentence, September 24, 2013, in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0002302-2013 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2014 Appellant, Tamir J. Wright, appeals from the judgment of sentence imposed following a bench trial where he was found guilty of simple assault and resisting arrest. On September 24, 2013, appellant was sentenced to cutive county probation for resisting arrest. We affirm. The trial court summarized the factual history as follows: On Sunday, February 10, 2013 at approximately 10:36 a.m. the Upper Darby Township Police were dispatched to 557 Timberlake Road for the report of a physical domestic dispute in progress. Officer Michael Taylor of the Upper Darby Police Department arrived on location and met with the pointing south on Timberlake Road. Officer Taylor observed the victim to be very upset, out of breath, bleeding from her lip and had a red and swollen jaw. J. S33003/14 her in the head, face and stomach multiple times with a closed fist. The victim stated she then fell to the ground outside of her residence and Tamir kicked her in the face. The victim stated Tamir then dragged her down the street. Eventually she was wearing a blue hoodie, black work-out pants, and by Officer Taylor to assisting police. The victim was transported to Delaware County Memorial Hospital by paramedics for treatment. the A short time later Officer Taylor was checking area and observed a male matching the and the male turned and looked at Officer Taylor and advised to stop and reached into his waistband and ran from Officer Taylor. Officer Taylor pursued the male on foot while ordering him to stop and show his hands. The male discarded two objects while he was running from police. Officer Taylor was able to catch up to the male at Church Lane and Guilford Road and with the assistance of Lieutenant Thomas Shari, the two officers were able to take the male to the ground. While on the ground the male was ordered to show his hands which he failed to do and would not release his right arm. After a struggle with police the male was taken into custody. The male was identified as Tamir Wright, the Defendant. The Police retraced their steps and located two pill bottles, both in the name of the victim. The one bottle contained 75 blue pills stamped 03721 which were preliminarily identified as Alprazolam a Scheduled IV narcotic and the other bottle contained 12 white pills stamped PLIVA 433, which were preliminarily identified as Trazodone, which is not controlled substance. Trial court opinion, 12/20/13 at 1-2. -2- J. S33003/14 Appellant presents the following two issues for our consideration: 1) Whether the evidence was insufficient to sustain the conviction for Simple Assault since the Commonwealth failed to prove, beyond a reasonable doubt, that Mr. Wright attempted to cause, or intentionally, knowingly or recklessly caused bodily injury to another, where the complainant never testified that she was assaulted? 2) Whether the evidence was insufficient to sustain the conviction for Resisting Arrest since the Commonwealth failed to prove, beyond a reasonable doubt, that Mr. Wright, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, created a substantial risk of bodily injury to the public servant or anyone else, or employed means justifying or requiring substantial force to overcome the resistance? 1 Appellant asserts that the evidence was insufficient to support his convictions. We note our standard of review: As a general matter, our standard of review of sufficiency claims requires that we evaluate the winner giving the prosecution the benefit of all reasonable inferences to be drawn from the Commonwealth v. Widmer, 560 Pa. deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, Commonwealth v. 1 In his Rule 1925(b) statement, appellant raised additional issues concerning his request for a continuance and hearsay statements made by the victim that were admitted as excited utterances. Appellant has abandoned these two issues. -3- J. S33003/14 Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005). Id.; see also Commonwealth v. Aguado, 760 A.2d circumstances established by the Commonwealth need not be absolutely incompatible with the der unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001). The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038-39 (Pa.Super.2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective upheld. See Brewer, 876 A.2d at 1032. Commonwealth v. Lynch, 72 A.3d 706, 707-708 (Pa.Super. 2013), quoting Commonwealth v. Stays, 70 A.3d 1256, 1266 (Pa.Super. 2013). Appellant notes that his simple 18 Pa.C.S.A. § 2701(a)(1): -4- assault conviction was under J. S33003/14 § 2701. Simple assault (a) Offense defined.--A assault if he: (1) person is guilty of attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; 18 Pa.C.S.A. § 2701(a)(1). Appellant further observes that for this statute, the Commonwealth must prove, beyond a reasonable doubt, that the accused attempted to cause, or intentionally, knowingly, or recklessly caused bodily injury to another. Id. See 18 Pa.C.S.A. § 2301. It is appellan was no testimony from the complainant that she suffered substantial pain or further contends no medical records were produced at trial, and as such, it was not proven that he caused injury to another person. Appellant also claims the Commonwealth failed to prove that he even attempted to cause bodily injury. The record indicates that the victim was subpoenaed by the Commonwealth. (Notes of testimony, 7/31/13 at 4.) On the morning of the trial, the Commonwealth received a voicemail from the victim indicating she had a medical emergency and would be unable to come to court. (Id.) While the defendant sought a continuance, the Commonwealth indicated it could go forward without her. (Id. at 6.) The trial court noted the victim -5- J. S33003/14 the case to October. (Id. at 5.) The case proceeded without the victim being present in the courtroom. Viewing the evidence in the light most favorable to the Commonwealth, the evidence at trial indicated the victim was injured even though she was not in the courtroom during the trial. Police Officer Michael Taylor was the only person to testify at trial. Officer Taylor testified that he jaw which indicated a recent assault. Officer Taylor repeated what the victim told him regarding the assault that appellant had struck her in the head, face, and stomach multiple times with a closed fist. The victim also told Officer Taylor she had fallen to the ground and appellant kicked her in the face. It is reasonable to conclude the victim would be bleeding and have a red and swollen jaw after being struck several times. While there was no direct testimony by the victim at trial, her hearsay exception to the hearsay rule.2 Because appellant has chosen not to pursue his contention hearsay statements, we need go no further. 2 See Pa.R.E. 803(2) (A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.). Thus, statements made in the heat of the moment as excited utterances are considered to be true and reliable. -6- J. S33003/14 Finally, we note that when Officer Taylor located appellant, he fled. Generally speaking, when a crime has been committed and a person thinks he is or may be accused of committing it and he flees or conceals himself, such flight or concealment is a circumstance tending to prove consciousness of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case; however, it is circumstantial evidence. Commonwealth v. Bruce, 717 A.2d 1033 (Pa.Super. 1998). See Commonwealth v. Housman, 986 A.2d 822, 831 (Pa. 2009), cert. denied, U.S. , 131 S.Ct. 199 (2010) (indicating flight may constitute circumstantial evidence of consciousness of guilt). Next, appellant argues the evidence was insufficient to convict him of resisting arrest. The Crimes Code defines the crime of resisting arrest as follows: § 5104. Resisting enforcement arrest or other law 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. Instantly, according to appellant, he merely locked his arms in a rigid manner. Appellant contends that, at most, his actions were an attempt to wiggle away from the officers and were not an act of aggression. Appellant -7- J. S33003/14 relies on Commonwealth v. Eberhardt, 450 A.2d 651 (Pa.Super. 1982), and Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super. 1981), to support his claim of insufficiency. Before discussing these two cases, we note that the Eberhardt case specifically noted that appellant was charged on only the first clause of Section 5104 (substantial risk of bodily injury to public servant). Rainey also focused on this clause. In Rainey, while the arresting officer was attempting to put the Rainey, 426 A.2d at 1149. However, at no time during the incident did the appellant push, strike, or kick any of the officers involved. Id. We reversed Id. at 1150. Similarly, in Eberhardt, as police officers were attempting to place the Eberhardt, 450 A.2d at 652. Citing Rainey, supra, we reversed the actions were only attempts to escape and not an aggressive assertion of Id. at 653. -8- J. S33003/14 In Commonwealth v. Miller, 475 A.2d 145 (Pa.Super. 1984), this court referenced Eberhardt and Rainey several prior decisions of this Court from which it can be inferred that we deem it an essential element of the crime of resisting arrest that the actor Id. at 146. express language hereof. However, the court We decline to follow that dictum in the instant Id. Continuing, the Miller court held that while generally it is not order for there to be a charge of resisting arrest. In the present case, the record indicates appellant did more than attempt to wiggle away from the officers. The Commonwealth: you caught up with into describe again, take you to place the Now again, Officer Taylor, once the Defendant, if we could go approximately how long did it Defendant into custody? Officer Taylor: Once we caught up with him, it was -underneath his body. Q. What was he doing, specifically? A. Just not wanting to place his hands behind his back, like refusing, resisting. I advised him, give us his hands, so we were basically struggling to get them from underneath his body and we had to pry them out. -9- J. S33003/14 Q. And again, when you say we, who was the other individual or individuals involved? A. It was myself and Lieutenant Sharp. Q. Okay. A. Yes, we had to pry them out with our arms and place him so that we could put handcuffs on him. Q. Okay. Was that yourself or Officer Sharp? A. It was both of us. I was trying to get one hand and he was trying to get the other hand. Q. And approximately how long did it take to place the Defendant in handcuffs? A. Maybe 10 to 15 seconds. And did you have to physically move body? Notes of testimony, 7/31/13 at 35. The statutory language of Section 5104 criminalizes resistance behavior that requires substantial force to surmount. Here, the fact that it took two police officers 10 to 15 seconds to place handcuffs on appellant meets the statutory language of resistance behavior that took substantial force to surmount. See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.Super. 2007) (appellant guilty of resisting arrest where she would not allow police officer to handcuff her and refused order to put her hands Commonwealth v. Schwenk, 777 A.2d 1149, 1154-1155 (Pa.Super. 2001) (resisting arrest conviction sustained where appellant struggled and resisted - 10 - J. S33003/14 attempts of two police officers to place him in handcuffs, requiring force to subdue him), appeal denied, 788 A.2d 375 (Pa. 2001). Thus, viewing the evidence in the light most favorable to the for resisting arrest. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 - 11 -
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