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decided: June 29, 1977.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, at No. 75-10, 870.


Kenneth D. Brown, Assistant Public Defender, Williamsport, for appellant.

Allen E. Ertel, District Attorney, Williamsport, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent for the reasons stated in Commonwealth v. Stortecky, Author: Van Der Voort

[ 248 Pa. Super. Page 147]

Appellant, Arletha Franklin, was charged with having committed the crimes of assault*fn1 and resisting arrest*fn2 following an incident that occurred on July 21, 1975. Appellant stood trial before a jury on February 12, 1976, at the conclusion of which she was found guilty on both counts. Post trial motions were filed and were denied by the lower court. On March 5, 1976, the appellant was sentenced to undergo imprisonment at the State Correctional Institution at Muncy for a term of not less than six (6) months nor more than twenty-four (24) months and to pay the cost of prosecution.

[ 248 Pa. Super. Page 148]

From that judgment of sentence, appellant has appealed to this Court.

On July 21, 1975, at approximately 5:00 o'clock in the afternoon, Officer Womeldorf of the Williamsport Police Department went to 1046 Vine Avenue in Williamsport to speak to Arletha Franklin about moving an automobile that had been parked in front of her house for at least two weeks without being moved. The officer had spoken to her several times previous to this occasion about the necessity of having the car removed, including earlier on July 21, 1975, when he warned her that if the car was not moved that day he would have a tow truck remove it. When Officer Womeldorf returned that afternoon, there were three women outside the appellant's home; one was sitting on the top of the car, one was standing in front of the car and the appellant was standing on the curb. Prior to returning to the scene, the officer had called for a tow truck to come to the above address to remove the vehicle. As the tow truck backed up to the automobile to hook up to it, the woman who had been standing in front of the car picked up a stick. Officer Womeldorf, thinking that he was going to be hit with the stick, grabbed it with one hand and a struggle ensued. At this point, the appellant became involved in the fray and she ended up with the stick in her hand. Officer Womeldorf testified that the appellant struck him twice with the stick; once on the left arm and once on the shoulder. He further testified that he informed the appellant that she was under arrest, however, this did not calm her down and he found it necessary to employ his mace to avoid using physical force to subdue her. The appellant threw the stick at the officer, although she missed hitting him with it, and then ran into her house. By this time two additional police officers arrived at the scene and were informed by Officer Womeldorf about what had transpired and that the appellant was under arrest for assault and disorderly conduct. The two officers entered the house in order to escort the appellant to the police headquarters. Another struggle ensued between the officers and the appellant as they attempted to place handcuffs

[ 248 Pa. Super. Page 149]

    on her and take her out to the patrol car. The officers succeeded in getting one handcuff on the appellant, but were having difficulty securing the other one. Officer Kibler, who was one of the officers in the house at this time, testified that it took three police officers to finally get the handcuffs on the appellant. She was transported to the police station where she was formally charged with resisting arrest and simple assault.

Appellant's initial contention is that the trial court erred in denying her request to charge the jury on disorderly conduct as a lesser included offense of resisting arrest, and prohibiting her from addressing the jury in the closing on that point. She argues that in failing to charge the jury as such and preventing her from arguing it at the conclusion of the trial, the lower court precluded her from raising her theory of defense to the jury. Both the lower court and the appellant cite the case, Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 358 A.2d 98 (1976), as stating the general rule pertaining to the trial court's discretion when charging the jury.

The general rule . . . is that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense. Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 208, 358 A.2d 98, 100 (1976).

However, the appellant urges this Court to adopt the position that a lower court is obligated to charge the jury on any lesser included offense regardless of the evidence. She reasons that a lesser included offense is a defense to the greater charge for which the accused was indicted. This is not the state of the law at this time. In Commonwealth v. Dessus, 214 Pa. Super. 347, 257 A.2d 867 (1969), the trial court refused to charge the jury on fornication, the lesser included offense of rape. We upheld the lower court stating that "[w]e have found no facts in this case which would give rise to the need to charge on fornication." 214 Pa. Super.

[ 248 Pa. Super. Page 150347]

, 364, 257 A.2d 867, 875 (1969). The Federal courts have also taken this position. Relying on United States v. Carroll, 510 F.2d 507 (2d Cir. 1975), the court in United States v. Marin, 513 F.2d 974 (2nd Cir. 1975), stated at 977 that "[a] defendant is entitled to a charge on a lesser crime only if the evidence warrants it." The facts of the instant case clearly indicate that the appellant's conduct would support the guilty verdict on the charge of resisting arrest. Officer Womeldorf informed appellant that she was under arrest after the initial scuffle and his being struck with the stick. The appellant went into her house where two other officers, answering the request for backup, attempted to talk her into going down to the police station. However, appellant persisted in her refusal to accompany the officers and became very loud and used abusive language. She was again informed that she was under arrest and the officers started to physically escort her out of the house. It became obvious that it would be necessary to employ handcuffs to manage the transportation of the appellant to the station and a struggle ensued as the officers attempted to secure the cuffs. As stated earlier, it took three officers to finally subdue the appellant. The lower court acted properly in refusing to allow defense counsel to argue the lesser included offense of disorderly conduct where, as in this case, the evidence did not warrant it. There can be little doubt that the testimony of the officers if believed by the jury proved the offenses of assault and resisting arrest, not of disorderly conduct. Among other things there was no evidence that appellant intended to cause public inconvenience, annoyance or alarm or to recklessly create a risk thereof.

Appellant's next contention is that the lower court erred when it failed to grant a mistrial due to the district attorney's closing argument wherein he called attention to the fact that the defense did not call Carol Coney as a defense witness. Carol Coney was one of the three women present when Officer Womeldorf returned to the scene with the tow truck. She was present throughout much of the time that the officers were at the scene. And she was subpoenaed by

[ 248 Pa. Super. Page 151]

    both the defense and the Commonwealth although she was called by neither to testify. During the closing argument, the prosecution commented on the fact that the defense did not call Carol Coney as a witness. From the record we are unable to determine what was actually stated by counsel, because the closing argument was not transcribed ...

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