No. 308 Harrisburg 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal, at No. 1560 C.A. 1981.
Thompson J. McCullough, York, for appellant.
Floyd P. Jones, Assistant District Attorney, York for Commonwealth, appellee.
Wickersham, Del Sole and Montemuro, JJ.
[ 328 Pa. Super. Page 98]
This is an appeal from the judgment of sentence entered against the appellant for resisting arrest*fn1 and for three summary offenses.*fn2 Appellant was adjudged guilty of resisting arrest by a jury, and guilty of the summary offenses
[ 328 Pa. Super. Page 99]
by the trial judge. Thereafter appellant filed a motion in arrest of judgment. This motion was argued and denied. Appellant was sentenced to pay a fine of five hundred dollars ($500.00) and the costs of prosecution on the resisting arrest charge. On the three summary offenses, he was sentenced to pay a total of seventy five dollars ($75.00) in fines and pay the costs of prosecution. This appeal is from the final judgment of sentence.
Appellant contends that the trial court erred in sending the issue of whether he was guilty of resisting arrest under 18 Pa.C.S.A. § 5104 to the jury (i.e. that the court below erred in refusing to grant his demurrer). The statute on resisting arrest, 18 Pa.C.S.A. § 5104 states:
§ 5104. Resisting arrest or other law enforcement
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 servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
The appellant argues in support of his contention that: (1) given the finding by the court below that the arrest underlying the resisting arrest charge was illegal, he could not as a matter of law be convicted under the provision of § 5104 pertaining to lawful arrest; (2) he was charged only with resisting the police officers after he had been placed under arrest, and not with preventing the police officers from discharging any other duty and therefore could not as a matter of law be convicted under the provisions of § 5104 pertaining to discharge of public duty; (3) in any event, the evidence shows only that he resisted the police officers after they ...