Opinion
J-A04022-17 No. 1707 EDA 2015
05-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANGELA BOWMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 7, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004252-2014 BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Angela Bowman appeals from the judgment of sentence imposed after the trial court convicted her of aggravated assault, possessing an instrument of crime, and resisting arrest. We affirm.
18 Pa.C.S. §§ 2702, 907, and 5104 respectively. --------
The trial court summarized the factual background of this case as follows:
On December 1st, 2013 around 12:20 in the morning, Police Officer Tyrone Bacon responded to the location of [a smoke shop at] 504 North 5th Street in Philadelphia. When Officer Bacon arrived, Appellant was on the ground wrestling with a security guard. After separating the security guard and Appellant, Officer Bacon handcuffed the Appellant and placed her in the back of his patrol vehicle. As Officer Bacon handcuffed the Appellant, he noticed that she was irate, mad, and crying. After placing the Appellant in the patrol car, Officer Bacon called for a
female officer to come and do the pat down of the Appellant as per Police policy. Officer Kathleen Feeney responded to the call and came to the scene. When Officer Feeney arrived, she went to the patrol car to complete the search. As Officer Feeney attempted to do the search of the Appellant, the Appellant said to her "if you touch me, I'm going to fuck you up."Trial Court Opinion, 4/12/16, at 2-3 (citations to notes of testimony omitted).
Somehow the Appellant was able to slip one hand out of her handcuffs and she turned around to face Officer Feeney. The Appellant hit Officer Feeney in the forehead with the handcuff, breaking Officer Feeney's glasses and leaving a little bump on her head. Officer Feeney then struggled with the Appellant to contain the hand that had the loose handcuff swinging around. The other officers at the scene intervened and were able to restrain the Appellant. However, the Appellant was able to get loose again and then lunged at Officer Feeney. After the Appellant was able to get loose, Officer Bacon and three other officers tried to restrain the Appellant. The officers were able to get the Appellant on the ground, but she was kicking, hollering and screaming. Officer Feeney stated that she visited Frankford [H]ospital and received treatment for her hand and head. Officer Feeney had an x-ray done of her hand and was given medication for her headache and swelling. Officer Feeney missed a couple of months of work because the hand injury was to her gun hand and she sustained a concussion. Officer Feeney also stated that she had headaches and nausea for a couple of weeks after the incident.
Contrary to the testimony of Officers Bacon and Feeney, Appellant's mother and brother testified that the Appellant did not say "I will fuck you up" and that she did not strike Officer Feeney. The Appellant's mother and brother testified that it was Officer Feeney who was yelling and pushing the Appellant. Both witnesses testified that they went to the scene of the crime together. Appellant's mother testified that the security guard was on the scene upon her arrival and that he threw her daughter on the concrete and hit her. The Appellant's mother also testified that the security guard knocked her out of her wheelchair. Appellant's brother testified that the security guard was not on the scene when he arrived with his mother, and that nothing happened to his mother while on the scene.
Appellant was charged with the above crimes and convicted following a bench trial. On May 7, 2015, the trial court sentenced her to four years' probation for aggravated assault and possessing an instrument of crime, and a concurrent two years' probation for resisting arrest. She filed this timely appeal. Appellant presents three issues for our review:
1. Was the evidence insufficient as a matter of law to sustain [A]ppellant's conviction for aggravated assault on a police officer where there was no evidence of intent to cause bodily injury?Appellant's Brief at 3.
2. Was not the evidence insufficient as a matter of law to sustain [A]ppellant's conviction for possession of an instrument of crime where the handcuffs possessed by [A]ppellant were not an instrument of crime and there was no intent to employ them criminally?
3. Was not the evidence insufficient as a matter of law to sustain [A]ppellant's conviction for resisting arrest where the arrest was not lawful?
We review Appellant's claims mindful of the following:
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 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. Brown , 23 A.3d 544, 559-60 (Pa. Super. 2011) (citations omitted).
Appellant challenges the sufficiency of her convictions of aggravated assault and possessing an instrument of crime on the basis that she lacked the intent to cause bodily injury to Officer Feeney, or to use the handcuffs criminally. Neither the law nor the record supports these claims.
A person is guilty of aggravated assault of a police officer if he "attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty." 18 Pa.C.S. § 2702(a)(3). Officer Feeney was a person defined in 18 Pa.C.S. § 2703(c), which provides that the "officers, agents, employees and other persons referred to in subsection (a) shall include a ... [p]olice officer." 18 Pa.C.S. § 2703(c)(1). Bodily injury means the "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.
A conviction for possession of an instrument of crime requires the Commonwealth to prove that a defendant possessed an instrument that is commonly used for criminal purposes, under circumstances not manifestly appropriate for lawful use, with the intent to employ it criminally. Commonwealth v. Foster , 651 A.2d 163, 165 (Pa. Super. 1994), citing 18 Pa.C.S. § 907. "The Commonwealth must prove every element of the offense, including criminal intent, beyond a reasonable doubt. . . . Although criminal intent can be inferred beyond a reasonable doubt from the surrounding circumstances, it cannot be inferred from mere possession." Id.
In addition to the details recited above relative to Appellant's actions and Officer Feeney's injuries, our reading of the notes of trial testimony reveals that Officer Bacon was the first to arrive at the scene, and he observed a security guard "wrestling" on the ground with Appellant, who then "tried to walk off." N.T., 3/6/15, at 7. At that point, Officer Bacon handcuffed Appellant and placed her in the back of his patrol car. Id. Officer Bacon then called for Officer Feeney to conduct a pat down of Appellant. During that process, according to the officer's testimony, Appellant told Officer Feeney " multiple times " that she would "fuck her up." N.T., 1/23/15, at 9 (emphasis added). Clearly Appellant by her words and actions demonstrated her intent to cause bodily injury to Officer Feeney, including her intent to use the handcuffs as an instrument of crime.
The trial court explained:
In the present case, the evidence of the Appellant hitting Officer Feeney in the head is sufficient to prove aggravated
assault as a felony of the second degree. In Commonwealth v. Dailey , the court dealt with the issue of whether the defendant acted with intent to cause bodily injury when he hit the victim twice in the head. 828 A.2d 356, 359 (Pa. Super. 2003). The court found that the issue of intent must be determined on a case-by-case basis. Id. at 361. The Dailey court stated that, "depending on the other circumstances, even a single punch may be sufficient." Id. at 360.Trial Court Opinion, 4/12/16, at 4-6.
Here, as Officer Feeney was about to perform the frisk the Appellant was screaming, "I will fuck you up." Once the Appellant came free from one of the handcuffs, she turned to Officer Feeney and hit her in the forehead with the handcuff, breaking her glasses and leaving a little lump on her head. Officer Feeney then struggled with the Appellant to contain the hand with the loose handcuff swinging around. Even after she struck Officer Feeney, the Appellant attempted to continue attacking the dazed officer and she was only thwarted with the help of the other officers on the scene. Similar to the defendant in Dailey , the Appellant hit Officer Feeney in the head purposefully. The Appellant used the hand with the handcuff on it, rather than her free hand. The Appellant used the hand with the handcuff on it because she intended to hit Officer Feeney to cause bodily injury. As a result of the Appellant's actions, Officer Feeney suffered debilitating injuries that adversely interfered with her daily life. Specifically, Officer Feeney was incapable of performing her duties as a Philadelphia Police Officer for a couple of months. . . .
[In addition,] the Appellant specifically adapted the handcuffs to be an instrument of her criminal assault of Officer Feeney. In Commonwealth v. Magliocco , the Supreme Court of Pennsylvania found that the Commonwealth was not required to prove that the instrument in question was commonly used for criminal purposes. 883 A.2d 479, 486 (Pa. 2005).
In the present case, the Appellant used her hand that had the handcuff attached to it, rather than the free hand that did not have anything. It is clear the Appellant used her hand with the handcuff because it became an instrument of crime of assault. As the pit bull was adapted to be used in the commission of an assault, the handcuff was adapted in this case. As it was stated in Magliocco , the handcuff did not have to be something that was commonly used as an instrument [of crime].
We agree with the trial court's analysis. For the reasons stated by the trial court, we conclude that Appellant's first two sufficiency claims are without merit.
In her third claim, Appellant assails the sufficiency of the evidence to support her conviction for resisting arrest on the basis that her underlying arrest was unlawful. Appellant states that "the testimony at trial did not establish probable cause to arrest [A]ppellant. In fact, the testimony at trial did not even establish why [A]ppellant was being arrested." Appellant's Brief at 23.
A person is guilty 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. § 5104. To be convicted of resisting arrest, the underlying arrest must be lawful. Commonwealth v. Jackson , 924 A.2d 618, 620 (Pa. 2007).
Appellant is correct that the record does not expressly indicate why she was initially detained. However, Officer Bacon testified that just after midnight, he was the first to respond to the smoke shop for "a person screaming" call. N.T., 3/6/15, at 5. When he arrived, he saw a security guard "wrestling" on the ground with Appellant, "trying to get control or ahold of her." Id. Officer Bacon testified that Appellant "was telling [the security guard] to get off of her at the time." N.T., 3/6/15, at 7. The following exchange occurred between the Commonwealth and Officer Bacon:
Q. And what did you do?Id. at 7-8.
A. I had them both, I separated them. [Appellant] tried to walk off, I grabbed her. She said hold up, wait a minute. I placed her in the back of my patrol vehicle, I then asked the [security guard]—
Q. Did you put handcuffs on her?
A. Yes, I did.
Q. Okay.
A. I asked the security guard what happened. He stated—
Q. Without telling us what he said—
[Appellant's Attorney]: Objection.
Q. So you're talking with the security guard, [Appellant] is handcuffed in the back of your vehicle?
A. Yes.
Contrary to Appellant's argument, the record demonstrates probable cause for Officer Bacon's initial arrest of Appellant because Officer Bacon reasonably inferred that Appellant was engaged in criminal activity. We note:
"Probable cause to arrest exists when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." In re C.C.J., 799 A.2d 116, 121 (Pa.Super.2002) (quoting Commonwealth v. Gwynn , 555 Pa. 86, 98, 723 A.2d 143, 148 (1998)). "Probable cause justifying a warrantless arrest is determined by the 'totality of the circumstances.'" Id. (quoting Commonwealth v. Myers , 728 A.2d 960, 962 (Pa.Super.1999)).Commonwealth v. Dommel , 885 A.2d 998, 1002 (Pa. Super. 2005), appeal denied , 885 A.2d 998 (Pa. 2007).
"[P]robable cause does not involve certainties, but rather 'the factual and practical considerations of everyday life on which reasonable and prudent men act.'" Commonwealth v. Wright , 867 A.2d 1265, 1268 (Pa.Super.2005) (quoting Commonwealth v. Romero , 449 Pa.Super. 194, 673 A.2d 374, 376 (1996)). "It is only the probability and not a prima facie showing of criminal activity that is a standard of probable cause." Commonwealth v. Monaghan , 295 Pa.Super. 450, 441 A.2d 1318 (1982) (citation omitted). . . . Commonwealth v. Lindblom , 854 A.2d 604, 607 (Pa.Super.2004) (reciting that probable cause exists when criminality is one reasonable inference, not necessarily even the most likely inference). To this point on the quanta of evidence necessary to establish probable cause, the United States Supreme Court recently noted that "[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [ ]probable-cause[ ] decision." Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citations omitted).
Here, Officer Bacon acted reasonably in arresting Appellant when he observed her wrestling with the security guard and then attempting to walk away. We thus reject Appellant's claim that there was insufficient evidence to support her conviction of resisting arrest because the testimony at trial did not establish probable cause to support her underlying arrest.
For the above reasons, and with regard to all three of Appellant's sufficiency arguments, our review of the record comports with the trial court's recitation of the facts and application of the law. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/30/2017