No. 59 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1673 CD 1978
Jeffery M. Cook, Assistant Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., notes his dissent.
[ 285 Pa. Super. Page 76]
This is an appeal from the judgment of sentence entered against appellant for resisting arrest.*fn1 Appellant was convicted in a bench trial and subsequently sentenced to serve no less than four and no more than twelve months of incarceration. This appeal followed.
The sole question raised is the sufficiency of the evidence to sustain the conviction. It is axiomatic that our test on appeal of a defendant's conviction is whether, reading the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the Commonwealth has proven all the elements of the offense beyond a reasonable doubt. Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973); Commonwealth v. Stukes, 435 Pa. 535, 257 A.2d 828 (1969).
Reading the evidence in the light most favorable to the Commonwealth the facts established at trial are these. Inebriated after a night of heavy drinking, appellant sought refuge at the home of a friend, Fletcher Duncan. Unknown to appellant Duncan had shortly before moved. Upon arriving at his friend's former residence, appellant entered and found the apartment vacant. Obligated by the call of nature and the effects of too much drinking, appellant proceeded to the bathroom. The sound of the toilet flushing awakened the inhabitant of the second floor apartment, who then called the police. A short time thereafter, Officer
[ 285 Pa. Super. Page 77]
Hockley of the Harrisburg Police Department entered and found appellant lying on the floor. Officer Hockley roused the appellant and placed him under arrest. Appellant ignored the officer and attempted to leave, but was restrained from doing so by the officer's grip on appellant's neck and belt. Officer Brown entered the apartment and placed appellant against the wall for frisking. He then escorted appellant to a waiting police van, while Officer Hockley spoke with the second floor tenant and, by telephone, with the building's owner. The walk to the van was uneventful but once reaching it, appellant attempted to run away. Officer Brown pursued and grabbed appellant by the sleeve of his coat. Appellant began to shake himself violently, to wiggle and squirm in an attempt to free himself of the officer's grasp. Corporal Neubaum arrived on the scene and proceeded to strike appellant on the head with his nightstick, inflicting a wound which later required six stitches. Even after the blow to his head, appellant continued his aforesaid conduct. Officer Brown then grabbed appellant by the throat choking him to such an extent that he was obliged to release his grip lest appellant succumb for lack of air. While choking appellant Officer Brown struck his knee against the curb, slightly reinjuring the joint, which had then only recently been operated upon. Finally, Officer Hockley came to the assistance of Officer Brown and Corporal Neubaum. The three then subdued appellant and handcuffed him. By their own testimony, Officers Brown and Hockley admitted that at no time during the fracas did appellant strike, push or kick anyone, but merely attempted to squirm, wiggle, twist and shake his way free of their grasp. Officer Brown's fall came about as a result of his attempt to hold onto appellant's throat and not through any aggressive act on the appellant's part.
The section of the Pennsylvania Crimes Code under which appellant was convicted reads:
"A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest ...