No. 942 April Term, 1973, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Div. at No. CC7706553A.
Patrick McFalls, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Van der Voort, Spaeth and Watkins, JJ. Van der Voort, J., files a concurring and dissenting opinion.
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On September 22, 1977, appellant was arrested and charged with theft by unlawful taking, receiving stolen property, unauthorized use of an automobile, aggravated assault, resisting arrest, recklessly endangering another person, and possession of instruments of crime. On January 4, 1978, appellant entered pleas of guilty to the charges of theft by unlawful taking, resisting arrest, recklessly endangering another person, and possession of instruments of crime.*fn1 The Commonwealth dropped the other charges. On January 10, 1978, appellant was permitted to withdraw his guilty pleas. All of the charges were reinstated and a jury trial was held on March 7, 1978.*fn2 The jury found appellant guilty of unauthorized use of an automobile, resisting arrest, and recklessly endangering another person, and not guilty of
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the other charges. Post-verdict motions were denied and appellant was sentenced to eleven and one-half to twenty three months in prison. On this appeal he contends: 1) that the evidence was insufficient to sustain his conviction of resisting arrest;*fn3 2) that the lower court erred in not declaring a mistrial when a prosecution witness testified that appellant had refused to sign a waiver of rights form; and 3) that the Commonwealth did not properly reinstate the charges that had been dropped when appellant pleaded guilty.
When considering a claim that the evidence was insufficient to sustain a conviction, "we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted." Commonwealth v. Steward, 263 Pa. Super. 191, 199, 397 A.2d 812, 815-16 (1979); see Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979). Regarded in this light, the evidence in support of the jury's conviction of appellant for resisting arrest may be summarized as follows:
At approximately 6:20 p. m. on September 13, 1977, Detective John Flaherty of the Allegheny County Police was driving his car near the corner of 9th and Carson Streets. He saw appellant driving a 1968 green Plymouth sedan east on Carson Street; appellant was driving erratically and
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collided with the rear of another car. Detective Flaherty, who was dressed in plainclothes, walked over to appellant, identified himself as a police officer, and asked if appellant needed help. Appellant looked at him, smiled, put his car in reverse, backed it up a few feet, shifted into drive, and sped away. To avoid being hit, the detective fell to the ground. He got up, ran back to his car, and drove after appellant. Appellant led the detective on a chase through back streets for approximately two miles until he was forced to stop behind some traffic at a red light. The detective caught up with appellant while he was stopped at the light, parked his car behind appellant's car, and approached on foot. He leaned into the open window on the driver's side, showed appellant his badge, identified himself, and told appellant to turn off the engine. When appellant did not turn off the engine, the detective reached into the car with his right hand in an attempt to turn off the engine himself. Appellant shifted the car into reverse, rammed the detective's car, shifted back into drive, and sped away. The detective was thrown to the ground and suffered a broken tooth; also, he had to scramble out of the way of appellant's car while on the ground to avoid being run over as appellant turned his car sharply to the left. The detective gave up his chase and called headquarters with a description of appellant and the car. On September 22, 1977, the detective saw appellant walking along a street, advised him of his rights, and arrested him. Later that day appellant told the detective that he was sorry if he had hurt him and that he did not mean to.*fn4
The crime of resisting arrest is defined as follows: "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
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servant or any one else, or employs means justifying or requiring substantial force to overcome the resistance." Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5104 (1973).
In arguing that the evidence was insufficient, appellant contends that evidence of mere flight to avoid arrest is not sufficient to support a conviction of resisting arrest. In support of this argument he cites this court's decision in Commonwealth v. Meo, 233 Pa. Super. 483, 334 A.2d 748 (1975). In that case the defendant drove away from the police after they had signaled him to stop and, after a brief chase, abandoned his car and ran away on foot. When apprehended, he was sitting in a nearby house. He was taken into custody without any resistance. In holding the evidence insufficient, this court stated that the defendant's "act of 'running away' from the police, both in his car and later, on foot" were not violations of the resisting arrest provision of the 1939 Penal Code. Id., 233 Pa. Super. at 487, 334 A.2d at 749; see Act of June 24, 1939, P.L. 872, § 314, 18 P.S. § 4314 (1963), superseded by Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5104 (1973).
While section 5104 of the Crimes Code, under which appellant was charged, differs from section 4314 of the 1939 Penal Code,*fn5 still it appears that evidence of mere flight to avoid arrest would not alone be enough to support appellant's conviction. However, the evidence went beyond evidence
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of mere flight to avoid arrest. Specifically, as stated above, the evidence demonstrated that when Detective Flaherty approached appellant the second time, and identified himself and tried to turn off the engine of appellant's car, appellant backed up the car while the detective's arm was inside it, and sped away, throwing the detective to the ground. This evidence was no doubt evidence of flight to avoid arrest, but it was also evidence that appellant had "create[d] a substantial risk of bodily injury" to the detective, and as such it was sufficient to support appellant's conviction for resisting arrest. Cf. Model Penal Code, § 242.2, Commentary to Tentative Draft No. 8 (conviction warranted where circumstances of flight expose pursuing officers to substantial danger).
During cross-examination by appellant's counsel of Detective James Morton, one of the officers assigned to investigate appellant's ...