No. 656 Philadelphia, 1981, APPEAL FROM THE SENTENCE OF THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA, CRIMINAL SECTION, NO. 80058601
Gary S. Fronheiser, Assistant Public Defender, Reading, for appellant.
George Yatron, District Attorney, Reading, for Commonwealth, appellee.
Hester, Cirillo and McEwen, JJ. McEwen, J., files a dissenting opinion.
[ 303 Pa. Super. Page 507]
Appellant, Cedrique O. Miller,*fn1 was convicted in a jury trial of resisting arrest.*fn2 Appellant filed motions for new trial and in arrest of judgment which were denied. He was then sentenced to a term of imprisonment of nine months to two years. This appeal followed.
Appellant asserts that 1) the evidence was insufficient, as a matter of law, to sustain a conviction, 2) the verdict was contrary to the weight of the evidence and 3) the trial court erred in denying defense counsel's motion for a mistrial when the Commonwealth introduced evidence of appellant's parole violations. Appellant's contentions are without merit and we, therefore, affirm.
In appraising the sufficiency of the evidence, we must apply a two-part test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the factfinder could properly have based its verdict; then we must ask whether that evidence with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).
The record so viewed, establishes that on March 20, 1980, at approximately 1:15 p.m., two Pennsylvania state parole officers were "tipped off" by the West Reading Borough Police that appellant, a parolee, was living in a West Reading motel. Appellant was required, as a condition of parole, to notify his parole officer of any change in his address, failure to do so constituted a parole violation. Appellant had given his parole officer another address in Reading as his place of residence.
Upon receiving the tip as to appellant's whereabouts, the parole officers proceeded to the motel, where they were advised that the room in question was registered under the
[ 303 Pa. Super. Page 508]
name of "Mike Peoples." One of the staff of the motel admitted the officers to the room. Upon entering the room, the officers noticed appellant sleeping and noted several parole violations*fn3 around the room. Appellant was advised that he was under arrest for violation of parole and was told to get dressed. After dressing, appellant "bolted" from the room and got 20 feet outside, only to run into a local police officer coming into the motel. The police officer attempted to restrain appellant but it took the combined efforts of two police officers and the two parole officers to subdue him and take him into custody.
Appellant first contends that the evidence was insufficient to sustain a conviction. Specifically, appellant argues that to be guilty of resisting arrest there must be a "lawful arrest" and here the arrest was illegal because it was made without an arrest warrant.
The offense of Resisting Arrest or other law enforcement is defined as:
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 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. (emphasis added)
Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S.A. § 5104.
It is well-settled law that it is for the trial court and not the jury to determine whether the arrest was lawful. Commonwealth v. Franklin, 248 Pa. Super. 145, 374 A.2d 1360 (1977). The lower court was correct in its conclusion that the arrest by the parole officer was lawful. When performing his normal duties, a parole agent is not required to obtain a search ...