Opinion
J-S37037-13 No. 2866 EDA 2012 No. 2867 EDA 2012
07-14-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROMAN YANUSH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 21, 2012
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007351-2011
Appeal from the Judgment of Sentence September 21, 2012
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007587-2011
BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J. MEMORANDUM BY GANTMAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Roman Yanush, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his bench trial convictions for criminal attempt, unsworn falsification to authorities, resisting arrest or other law enforcement, escape, disorderly conduct, and lamps and other equipment on pedalcycles. We affirm and grant counsel's petition to withdraw.
18 Pa.C.S.A. §§ 901, 4904, 5104, 5121, 5503; 75 Pa.C.S.A. § 3507, respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.
[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.Id. at 178-79, 978 A.2d at 361.
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
Instantly, counsel filed a petition for leave to withdraw representation. The petition states counsel engaged in a diligent review of the record and determined the appeal is wholly frivolous. Counsel indicates he notified Appellant of the withdrawal request. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to proceed pro se or with new privately retained counsel to raise any additional points or arguments that Appellant believes have merit. In his Anders brief, counsel provides a summary of the facts and procedural history of the case with citations to the record. Counsel refers to evidence in the record that may arguably support the issues raised on appeal, and he provides citations to relevant law. Counsel also states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with new privately retained counsel, we review this appeal on the basis of the issues raised in the Anders brief:
WAS THE...INITIAL STOP OF APPELLANT WHILE RIDING A BICYCLE ILLEGAL, THUS REQUIRING THE SUPPRESSION OF ANY PHYSICAL AND TESTIMONIAL EVIDENCE FLOWING THEREFROM?(Appellant's Brief at 4).
[IS] APPELLANT'S CONVICTION FOR RESISTING ARREST SUPPORTED BY COMPETENT EVIDENCE OF RECORD?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas C. Branca, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed March 14, 2013, at 8-14) (finding: (1) Motor Vehicle Code permits officer to initiate traffic stop when he possesses reasonable suspicion of violation; officer's testimony included specific and articulable facts that caused him to suspect Appellant was committing violation; officer observed that Appellant's bicycle lacked front light; officer had safety concerns for Appellant and other drivers after witnessing vehicle swerve to avoid collision with Appellant on unlighted bicycle; (2) Appellant fled from police vehicle transporting him to county correctional facility; officers recaptured Appellant after running into midday traffic at busy intersection; officers risked injury while pursuing Appellant; officers employed substantial force to recapture Appellant; Appellant's flight through intersection created danger for other motorists in vicinity). Accordingly, we affirm on the basis of the trial court's opinion and grant counsel's petition to withdraw.
Judgment of sentence affirmed; counsel's petition to withdraw is granted. Judgment Entered. ____________________
Prothonotary
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v.
ROMAN YANUSH
NO. 7351-11
7587-11
2866 EDA 2012
2867 EDA 2012
(Consolidated)
OPINION OF THE COURT
Branca, J.
I. INTRODUCTION
Defendant, Roman Yanush appeals to the Superior Court from the judgment of sentence imposed by this Court on September 21, 2012. Defendant claims that the Court erred both by denying Defendant's Motion to Suppress evidence in case number CP-46-CR-0007351-2011 ("7351-11") and finding that the record contained sufficient evidence to support Defendant's conviction in case number CP-46-CR-0007587-2011 ("7587-11"). For the reasons that follow, Defendant's appeal is without merit.
Defendant filed two Notices of Appeal to the imposition of sentences on Bills of Information 7351-11 and 7587-11, respectively, which the Superior Court consolidated, sua sponte, on January 5, 2013.
II. STATEMENT OF THE CASE
A. Factual History
7351-11
On September 30, 2011, at approximately 1:41 a.m., Officer Kevin Inman ("Officer Inman") of the Lower Moreland Township Police Department, who was on routine patrol in a marked vehicle and in full uniform, was stopped on Red Lion Road at a red light at the intersection of Red Lion Road and Philmont Avenue, in Montgomery County, Pennsylvania. [N.T. 9/19/12, at 9]. While there, he observed a vehicle which swerved over the double yellow line as it approached him from the opposite direction and then back into the lane of travel as if to avoid something. [N.T. 9/19/12, at 10]. The vehicle then stopped at the lighted intersection, at which point, Officer Inman saw an individual, later identified as Defendant, riding a bicycle which he drove up behind the car. Defendant wore dark clothing and a backpack, The bicycle did not have a front light as required by the Motor Vehicle Code. [N.T. 9/19/12, at 12]. It was unusual to have bicycle traffic in this area generally, and in particular, at 1:41 a.m. [N.T. 9/19/12, at 12]. In addition, Officer Inman knew of two recent burglaries and a theft from a vehicle in the area. [N.T. 9/19/12, at 11]. Given those circumstances, and Defendant's violation of the Motor Vehicle Code, Officer Inman conducted a traffic stop of Defendant.
See 75 Pa. C.S. § 3507(a) ("Every pedalcycle when in use between sunset and sunrise shall be equipped on the front with a lamp ..,")
Once stopped, Officer Inman advised Defendant that he was being stopped for the Motor Vehicle Code violation and requested identification from Defendant. It was at this point that Defendant indicated that he had only been in the country for three days, was from the Ukraine, and that he had only a passport and Ukrainian driver's license on his person. [N.T. 9/19/12, at 16], Despite this contention, neither Defendant, nor Officer Inman, was ultimately able to locate Defendant's identification. By this time, back-up officers had arrived. [N.T. 9/19/12, at 17]. Defendant told Officer Inman that he was staying with his cousin who lived up the street. [N.T. 9/19/12, at 18], Defendant confided that he only knew the first name of his alleged cousin—Grig—with whom he had been residing. [N.T. 9/19/12, at 18].
With Defendant's consent, Officer Inman safely transported him to the alleged cousin's residence to allow Defendant to retrieve his identification. [N.T. 9/19/12, at 19], During the transport, Defendant was not handcuffed and voluntarily went into the backseat of the squad car. [N.T. 9/19/12, at 20]. As it turned out, Defendant did not know the specific address and, instead, directed the officers (by then back-up, including Sergeant Scirrotto, had arrived on the scene) to a small apartment complex known as "Fetters Mill Square " about a quarter of a mile away. [N.T. 9/19/12, at 20-22]. Having arrived at the complex, Defendant was unable to identify the specific apartment where he had allegedly been staying. [N.T. 9/19/12, at 21].
After canvassing some of the apartments in the complex, the officers located a "Grigory Primak" who told them that he knew Defendant as a member of the Russian community, but that he was not related to Defendant, he had not been living with him, and that he actually had not seen Defendant for a few months. [N.T. 9/19/12, at 21-22], Told of the conversation with Mr, Primak, Defendant responded to police that they had taken him to an incorrect address, and that he actually lived with another cousin, Andre, in a different apartment complex. [N.T. 9/19/12, at 24], Defendant told authorities that he did not know the address but could instruct them how to get there. [N.T. 9/19/12, at 25].
It was at that point that Defendant, when asked by Officer Inman, identified himself as "Roman Daniil Politov," and wrote the same upon a piece of paper provided to him by Officer Inman. [N.T. 9/19/12, at 25-26; Ex. C-2], Police determined the most expeditious means for identifying Defendant would to transport him to the Upper Moreland Police Department, which is equipped with a Live Scan to digitally fingerprint Defendant. [N.T. 9/19/12, at 30], The Live Scan results identified Defendant as Roman Yanush. [N.T. 9/19/12, at 30], When asked if this was his name, Defendant conceded his true identity and was placed under arrest, [N.T. 9/19/12, at 31]. Defendant was transported to Abington Police Headquarters for processing where he spent the remaining hours of the early morning.
As a result the above-referenced events, the Commonwealth ultimately charged Defendant with the following on Bill of Information 7351-2011: Count I-Unsworn Falsification to Authorities, Count II-Disorderly Conduct, and Count III-Violation of Light Regulations.
7587-11
The following morning, Detective John S. Pasqueal ("Det. Pasqueal") and his partner, Detective Carl Molt ("Det. Molt") both from the Lower Moreland Police Department, responded to Abington Police Headquarters to process Defendant, who had an immigration detainer levied against him. [N.T. 9/19/12, at 60-61, 63-64]. Judge William Maruszczak conducted a video arraignment and set Defendant's bail at $10,000.00 cash, After Defendant failed to post bail, Detectives Pasqueal and Molt prepared Defendant for transport to Montgomery County Correctional Facility (MCCF). [N.T. 9/19/13, at 63]. Defendant was placed into the backseat of their marked police SUV, and was buckled in with a seatbelt. [N.T. 9/19/13, at 65].
At approximately 12:00 pm, as they were traveling northbound on York Road (aka State Route 631), Det. Molt stopped the SUV at a red traffic light at the intersection of York Road and Davisville Road in Upper Moreland Township, Montgomery County. At that point, York Road consists of a four-lane highway, Traffic was fairly heavy that Friday afternoon. [N.T. 9/19/13, 66-67]. While stopped, the SUV was located in the left- straight lane, farthest from the curb, approximately 3-4 car lengths from the traffic signal [N.T. 9/19/12, 66], Det. Pasqueal recalls being on the phone with his radio room, advising them that Defendant was en route to MCCF, when all of the sudden he heard a loud banging emanating from the rear of the SUV. [N.T. 9/19/12, at 67]. He turned around just in time to see Defendant propelling himself from the right rear passenger door which was now open. [N.T. 9/19/12, at 67]. After telling Det. Molt what had transpired, Det. Pasqueal immediately exited the SUV to chase Defendant, who had begun to run in the northbound lane of York Road. Defendant, who was still handcuffed with a waistbelt but was not wearing leg shackles, made it all the way across the road to the curb on the northbound side of York Road before tripping and falling to the ground after one of his shoes fell off. [N.T. 9/19/12, at 68]. At that point, Det. Pasqueal restrained Defendant until Det. Molt came to assist. When asked why he had tried to escape, Defendant, who had sustained minor lacerations on his legs, stated that he fell out of the SUV. [N.T. 9/19/12, at 69]. After being treated for minor injuries and then released from Holy Redeemer Hospital, Defendant was finally successfully transported to MCCF. [N.T. 9/19/12, at 69].
The Commonwealth ultimately charged Defendant with the following on Bill of Information 7587-2011: Count One-Escape, Count Two- Criminal Attempt, Count Three-Resisting Arrest, and Count Four-Disorderly Conduct.
18 Pa. C.S. § 5)04,
B. Procedural History
On September 19, 2012, Defendant executed a Waiver of Jury Trial with the aid of his trial counsel, Frank C. Flick, Esquire, Assistant Public Defender. After hearing and argument on Defendant's Motion to Suppress, the undersigned denied Defendant's Motion and issued Findings of Fact and Conclusions of law from the bench. At the conclusion of Defendant's bench trial, the Commonwealth withdrew Count Two-Disorderly Conduct on Bill of Information 7351-11 and the undersigned found Yanush guilty on Count One-Unsworn Falsification to Authorities and Count Three-Violation of Light Regulations. [N.T. 9/19/12, at 96; 9/21/12, at 8). On Bill of Information 7587-11, the undersigned found Defendant guilty on all Counts— Count One-Escape, Count Two- Criminal Attempt, Count Three-Resisting Arrest, and Count Four-Disorderly Conduct.
Defendant waived his Pre-Sentence Investigation and requested that the Court proceed directly to the sentencing phase. [N.T. 9/21/12, at 8-11]. On Bills of Information 7351-11 and 7587-11, the Court sentenced Defendant on all of the charges of which Defendant was convicted— with the exception of Count III-Violation of Light Regulations, on which the Court imposed no penalty—to concurrent terms of imprisonment not to exceed six (6) to twelve (12) months. [N.T. 9/21/12, at 11-12].
The Court informed Defendant of his appellate rights. [N.T. 9/21/12, at 13-14].
Thereafter, on October 10, 2012, Defendant filed both a Motion for Leave to Proceed in Forma Pauperis, which the Clerk of Courts summarily granted, and a timely Notice of Appeal challenging the imposition of his sentence.
III. ISSUES PRESENTED
On October 24, 2012, Defendant filed a timely Pa. R.A.P. 1925(b) Statement setting forth the following for appellate review:
1. The learned trial court erred as a matter of law and abused its discretion when it denied Appellant Yanush's motion to suppress evidence in case number CP-46-CR-0007351-2011 in that:
a. Lower Moreland Township Police Officer Kevin Inman's stop of Appellant Yanush's bicycle at approximately 1:30 o'clock a.m. on 30 September 2011 was without reasonable suspicion that Appellant was in violation of any provision of either the Crimes Code or the Vehicle Code;
b. Officer Inman's stated reason for stopping Yanush's bicycle, i.e., the lack of a working headlight, was merely pretextual and that the officer candidly stated at the suppression hearing that he was concerned about thefts from residences and vehicles that have occurred in the area from which Yanush was coming and wanted to investigate Yanush and the backpack he was carrying;
c. Section 6308(b) of the Vehicle Code, 75 Pa. C.S. § 6308(b), empowers police officers to stop vehicles upon reasonable suspicion that there is a violation of the Vehicle Code for the limited puiposes of securing the vehicle's registration, insurance information, the driver's operator's license, and other information pertinent to the enforcement of the Vehicle Code, a generalized search of the individual or the vehicle is not specifically authorized by 75 Pa, C.S. §6308(b). See also Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999);
d. The stop of Appellant Yanush's bicycle by Officer Inman and the subsequent search was illegal and in violation of Appellant Yanush's rights guaranteed by the Fourth Amendment to the United States Constitution, as applied to the States through the Due Process Clause of the Fourteenth Amendment, and by Article I, §8, of the Pennsylvania Constitution; and
e. As a result of the illegal stop and search, Appellant Yanush's subsequent arrest and the search of his belongings was illegal and the fruits of any such search should have been suppressed.
2. Appellant Yanush contends that there is legally insufficient evidence of record to support his conviction at docket number CP-46-CR-0007587-2011 for the offence of Resisting Arrest, in violation of 18 Pa. C.S. § 5104 (relating to resisting arrest) in that:
a. In order to establish a violation of 18 Pa. C.S. §5104 the Commonwealth must prove that the defendant: 1) intended to prevent a public servant from effecting a valid arrest; 2) created a substantial risk of bodily injury to the public servant or to another; or 3) employed means of resistance which required or justified substantial force to overcome. In re Woodford, 420 Pa. Super. 179, 616 A.2d 641 (1992);
b. Appellant Yanush was already in custody on 30 September 2011 when he exited himself from a Lower Moreland police SUV while that vehicle was en route to the Montgomery County Correctional Facility (MCCF);
c. Appellant Yanush's act merely exiting the Lower Moreland police vehicle while it was stopped at a red traffic signal did not create a substantial risk of bodily injury to either of the accompanying police officers nor to anyone else; and
d. In that Appellant Yanush's hands were handcuffed to a waist belt at the time, he did not, nor could he, employ means of resistance to his recapture by the police that required or justified substantial force on the part of the officers to overcome. This is especially true in that he was recaptured when one of his shoes fell off and he tripped and fell on a curb.
IV. DISCUSSION
The standard of review applied to claims raised on appeal after a bench trial is limited to determining whether the trial court abused its discretion or committed an error of law. See Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. Ct. 2007); Pa. R. Crim. P. 720. In evaluating a trial court's decision, an "abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Greer, 951 A.2d 346, 355 (Pa. 2008) (quoting Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)).
A. The Trial Court Properly Denied Defendant's Motion To Suppress.
First, Defendant claims that the Court erred as a matter of law and abused its discretion by denying his Motion to Suppress, which asserted police lacked reasonable suspicion or probable cause to stop him on his bicycle. Despite Defendant's assertion, the Court appropriately denied the Motion after finding that Officer Inman had probable cause to stop Defendant because the bicycle he was riding at the time did not have a front light as required by the Motor Vehicle Code. [N.T. 9/19/12, at 12].
See 75 Pa. C.S. § 3507(a) ("Every pedalcycie when in use between sunset and sunrise shall be equipped on the front with a lamp ...")
The appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is "whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Com. v. Ligons, 971 A.2d 1125, 1148 (Pa. 2009) (citing Com. v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007)). Furthermore, where a defendant challenges an adverse ruling of the suppression court, the reviewing court will consider only the evidence of the Commonwealth and whatever defense evidence remains uncontradicted in the record. Id. The reviewing court is bound by the factual determinations of the suppression court which are supported by the record and may reverse only if the legal conclusions drawn from those facts are erroneous. Id.
It is well-settled that Pennsylvania's Motor Vehicle Code permits a police officer to initiate a traffic stop when he possesses reasonable suspicion that a section of the Code has been or is being violated. See 75 Pa. C.S. § 6308(b). More Specifically, Section 6308(b) of Pennsylvania's Motor Vehicle Code, provides the following:
Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.75 Pa. C.S. 6308(b) (emphasis added).
The Commonwealth, which bears the burden of establishing the validity of the stop, aptly met this burden at the suppression hearing with Officer Inman's testimony, including the specific and articulable facts that lead him to reasonably suspect Defendant was committing a violation of the Motor Vehicle Code, See, Com. v. Shabazz, 18 A.3d 1217, 1220 (Pa. Super. Ct. 2011) (Affirming trial court's suppression where appellate court determined that combination of multiple air fresheners and fuzzy foam dice hanging from rearview mirror provided police with reasonable suspicion that defendant-driver was in violation of motor vehicle code and thus, supported traffic stop.). More specifically, Officer Inman testified that, before he stopped Defendant he took note both that Defendant's bicycle did not have a front light as required by the Motor Vehicle Code, and how unusual it was to have bicycle traffic in the area where he stopped Defendant at 1:41 a.m. [N.T. 9/19/12, at 12]. Officer Inman acknowledged the implicit safety concerns he had for Defendant and the other drivers on the road, since he had already witnessed one such vehicle swerve to avoid colliding with Defendant on his unlighted bicycle. [N.T. 9/19/12, at 10].
See 75 Pa. C.S. § 3507(a) ("Every pedalcycie when in use between sunset and sunrise shall be equipped on the front with a lamp ...")
The Court appropriately found that the fact that Officer Inman may have had an additional motive to stop Defendant, namely the burglaries and theft in the near proximity, did not obviate the validity or legality of his stop based on Defendant's violation of the Motor Vehicle Code. See Com. v. Chase, 960 A.2d 108, 120 (Pa. 2008) (quoting Whren v. U.S., 517 U.S. 806 (1996) (Holding that case law "foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.")). "In other words, if police can articulate a reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into the officer's motive for stopping the vehicle is unnecessary," Id.
In addition, any claim by Defendant that Officer Inman's search of his backpack violated his Fourth Amendment rights, fails. Defendant contends that the search was illegal and that the fruits of any such search should have been suppressed. First, as aptly demonstrated by the record, Defendant consented to Officer Inman's search which was merely for the purpose of locating Defendant's identification. [N.T. 9/19/12, at 17-18, 43-44 ]. Next, even if Defendant's consent were invalid, he concedes that the search did not result in any contraband. Thus, aside from Defendant's ethereal, academic contention that his rights were violated, he suffered no substantive or calculable harm from the search. Moreover, no evidence was gleaned from the search and therefore, there is nothing to suppress.
The record supports the undersigned's factual findings, and credibility determinations. The actions Officer Inman took to ascertain Defendant's identity were permissible, legal and proper, and, therefore, any evidence seized as a result of his investigation is legally admissible. Therefore, Defendant's claim that the trial court erred in denying his suppression motion fails.
B. The Commonwealth Produced Sufficient Evidence To Support Defendant's Resisting Arrest Conviction.
18 Pa. C.S. § 5104.
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Next, Defendant contends that the record contained insufficient evidence for the Court to find Defendant guilty of Resisting Arrest, 18 Pa. C.S. § 5104. More specifically, Defendant claims that his mere exit and flight, while handcuffed and wearing a prisoner restraint belt, from the patrol SUV while it was stopped at a traffic signal and en route to MCCF, negates elements necessary to prove the crime of Resisting Arrest.
The test for determining the sufficiency of the evidence is whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner, are sufficient to satisfy all elements of the offense beyond a reasonable doubt. Commonwealth v. Johnson, 42 A. 3d 1017, 1025 (Pa. 2012). It is well-settled that the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa. Super, Ct, 2011). Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. See Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa. Super. Ct. 2006). Only where the evidence offered to support the verdict is in contradiction to the physical laws of nature, will that evidence be deemed insufficient as a matter of law. Id. Finally, any doubts concerning a defendant's guilt must be resolved by the fact-finder, "unless the evidence is so weak and inconclusive that as a matter of law no probability of fact could be drawn" from it. Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006) (internal citation omitted). Appellate courts are, therefore, justifiably reluctant to substitute their judgments for those of the fact-finder. Id.
Pursuant to 18 Pa. C.S. § 5104, "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." At trial, the Commonwealth produced evidence sufficient to prove beyond a reasonable doubt that Defendant's unauthorized, unanticipated and intentional exit and subsequent flight from the patrol car created a substantial risk of bodily injury to the officers whose duty it was to safely transport Defendant and who were instead forced to chase Defendant on foot through a busy intersection,
Specifically, Det. Molt testified that he was seated in the front driver's side seat of the police SUV transporting Defendant to MCCF during midday rush hour at the busy intersection of York and Davisville Roads, when he turned to see the rear passenger side door open and Defendant leaping from the car. [N.T. 9/19/12, at 85]. He quickly signaled to Det. Pasqueal that Defendant was escaping. To recapture Defendant, Det. Pasqueal had to jump immediately from the safety of the police SUV, into midday traffic in a busy intersection. See 18 Pa. C.S. 5104. In the meantime, Det. Molt also exited the SUV. While running around the back of the SUV, Det. Molt had to quickly motion to traffic approaching from behind to stop to avoid collision. [N.T. 9/19/12, at 86, 89]. While the Detectives were able to quickly restrain Defendant and take him back into custody, it was not without putting their own wellbeing at substantial risk and employing substantial force. See 18 Pa. C.S. § 5104. In addition, while not necessary to prove Defendant's guilt, his flight through the intersection also created a serious distraction and substantial risk of bodily injury to the other motor vehicle operators in the vicinity.
Viewing the evidence and all reasonable inferences derived therefrom, in the light most favorable to the Commonwealth, including the Detectives' pursuit and ultimate recapture of Defendant, the record before the undersigned satisfies all elements of Resisting Arrest beyond a reasonable doubt, See, Johnson, 42 A.3d at 1025. As a result, Defendant's second and final claim of error fails. V. CONCLUSION
Accordingly, the trial court respectfully requests that the judgment of sentence imposed on Defendant, Roman Yanush on September 21, 2012, be AFFIRMED.
BY THE COURT:
______________________________
THOMAS C. BRANCA, J.
Copies of the above Opinion
Mailed on: 3/14/13
By Interoffice Mail:
Office of the Public Defender - Appellate Division
Timothy Peter Wile, Esquire, Chief
Montgomery County District Attorney - Appellate Division
Robert M. Falin, Esquire, Chief
Deputy Court Administrator-Criminal
____________________
Secretary