No. 2619 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 2037 of 1981.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Brosky, Wieand and Hester, JJ.
[ 327 Pa. Super. Page 155]
Ronald Gene Miller was tried before a jury which found him guilty of disorderly conduct*fn1 and resisting arrest.*fn2 Post-verdict motions were denied, and Miller was sentenced to pay a fine of $100.00*fn3 and was placed on probation for concurrent terms of one year. On direct appeal, he does not contest the conviction for disorderly conduct. However, he does contend that the evidence was insufficient to support a conviction for resisting arrest. He also contends that the trial court erred in denying three points for charge
[ 327 Pa. Super. Page 156]
which related to that part of the definition of resisting arrest which requires that police be engaged in making a lawful arrest. We find no merit in these contentions and will affirm the judgment of sentence.
Resisting arrest has been made a misdemeanor of the second degree by Section 5104 of the Crimes Code. The offense is committed when
". . . with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, [a] 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."
The intent of this section is "to confine the offense to forcible resistance that involves some substantial danger to the person." S. Toll, Pennsylvania Crimes Code Annotated § 5104 (1974), quoting Model Penal Code Comment, Tent. Draft No. 8, pp. 129-130. As a general rule, therefore, it is not criminal merely to "flee arrest." However, "where the circumstances of the flight expose the pursuing officers to substantial danger" a conviction for resisting arrest is proper. Id. The statute, it is clear, does not require the aggressive use of force such as a striking or kicking of the officer.*fn4 A person resists arrest by conduct which "creates a substantial risk of bodily injury" to the arresting officer or by conduct which justifies or requires "substantial force to overcome the resistance."
In determining whether the evidence was sufficient to sustain appellant's conviction, we must view the evidence in the light most favorable to the Commonwealth and, drawing therefrom all ...