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COMMONWEALTH PENNSYLVANIA v. ERIC MITCHELL (02/15/89)

filed: February 15, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC MITCHELL, A CHILD, APPELLANT. IN THE INTEREST OF AARON MITCHELL. APPEAL OF AARON MITCHELL



Appeal from the Order entered May 21, 1987, in the Court of Common Pleas of Philadelphia County, Juvenile No. 1563-87-3. Appeal from the Order entered May 21, 1987, in the Court of Common Pleas of Philadelphia County, Juvenile No. 1562-87-3.

COUNSEL

Irene H. Cotton, Philadelphia, for appellant (at 1556).

John Packel, Assistant Public Defender, Philadelphia, for appellant (at 1794).

Donna Zucker, Assistant District Attorney, Philadelphia, for Com., appellee (at 1556).

Olszewski, Kelly and Hester, JJ. Kelly, J., files concurring opinion.

Author: Olszewski

[ 381 Pa. Super. Page 593]

This is a consolidated appeal from orders of commitment after appellants were adjudicated delinquent. Appellants, Aaron and Eric Mitchell, raise the following issues for our review: (1) whether there was sufficient evidence to support appellants' respective adjudications of resisting arrest under 18 P.C.S.A. § 5104; and (2) whether the University of Pennsylvania campus police acted within their jurisdiction in detaining or arresting appellants under 71 P.S. § 646. In addition, Aaron contends that the evidence was insufficient to support an adjudication of delinquency on the charge of recklessly endangering another person. For the reasons below, we affirm.

[ 381 Pa. Super. Page 594]

Appellants, respectively, were charged with delinquency by reason of robbery,*fn1 attempted theft,*fn2 aggravated assault,*fn3 simple assault,*fn4 conspiracy,*fn5 resisting arrest,*fn6 and recklessly endangering another person.*fn7 Thereafter, appellants filed motions to suppress identification and physical evidence which were denied after hearing. On May 11, 1988, an adjudicatory hearing was held during which witnesses on behalf of the Commonwealth testified, Eric testified and testimony taken at the motions' hearing was incorporated in the Commonwealth's case-in-chief. After the adjudicatory hearing, the trial court found appellants delinquent of resisting arrest, and also found Aaron delinquent of recklessly endangering another person. Subsequently, the trial court committed each appellant to a Youth Development Center for a period of two years. Appellants, thereafter, timely filed notices of appeal.*fn8 On March 31, 1988, this Court granted Aaron's petition to consolidate appeals for our review.

The following facts were established in the court below. On February 22, 1987, Mary Hendricks telephoned the University of Pennsylvania campus police, and reported that she had been followed by two black, male, teenaged twins, wearing identical brown jackets with fringe or fur at the seams, blue jeans and sneakers, as she was walking from a

[ 381 Pa. Super. Page 595]

    supermarket located at 43rd and Locust Streets, Philadelphia. Approximately ten to fifteen minutes later, when she reached 40th and Spruce Streets, she observed a hand reaching from behind her and into her coat pocket from which her wallet was protruding.*fn9 She turned around and looked at appellants, who were standing immediately behind her. Within a matter of seconds, appellants proceeded west on Spruce Street. Once she believed that appellants were on their way, Ms. Hendricks continued south on 40th Street. Halfway down the block, however, she saw appellants directly behind her. She hurried to her residence, and contacted the University of Pennsylvania campus police. Appellants did not follow Ms. Hendricks to her residence.

On February 22, 1987, approximately 4:15 or 4:30 p.m., while on foot patrol in the 3900 block of Walnut Street, Philadelphia, Officer Gary Cooper of the University of Pennsylvania campus police received a radio call that a robbery had been attempted three to five minutes ago at 40th and Spruce Streets. The call contained a description of appellants. While receiving the radio message, and as he was walking on the south side of Walnut Street, Officer Cooper observed appellants walking east from 40th Street. Officer Cooper, thereafter, radioed for assistance. When Officer Talyai, a campus police officer, arrived, Officer Cooper pointed out appellants who were departing an arcade on the north side of Walnut Street. Officers Cooper and Talyai approached appellants, identified themselves and requested to speak with appellants "for a couple of minutes." (N.T. 4/7/87 at 7). Appellants cooperated, at which time appellants and the officers walked towards a donut shop located at the 3900 block of Walnut Street.*fn10 In front of the donut shop, Officers Cooper and Talyai informed appellants that they were being stopped because they fit the description of two suspects in an attempted theft. Officer Talyai further explained that the complainant was

[ 381 Pa. Super. Page 596]

    on her way and that, if she identified them, action would be taken, and if not, they could leave. Eric, who was standing between Officer Cooper and the outside wall of the donut shop, responded by grabbing Officer Cooper's collar and pushing him away. The two struggled briefly before Eric broke free and ran east on Walnut Street. A pedestrian tackled Eric, knocking him down to the ground. Thereafter, Eric was subdued by Officer Cooper and other campus police officers who had arrived on the scene.

Aaron also attempted to leave by grabbing Officer Talyai's arm and trying to throw Officer Talyai to the ground. Aaron broke away and ran east on Walnut Street for approximately one hundred feet before another pedestrian blocked his path and knocked him to the ground. Arriving on the scene, campus police officer, Thomas Rambo, grabbed Aaron. Aaron swung at Officer Rambo, missing him, then placed his hand on the handle of Officer Rambo's revolver, unsnapping the holster. Officer Rambo grabbed Aaron's wrist to remove his hand from the revolver and was able to subdue and handcuff Aaron. Both appellants were handcuffed and transported to University of Pennsylvania campus police headquarters for identification by the complainant.

Appellants first maintain that there was insufficient evidence to support appellants' respective adjudications of resisting arrest pursuant to 18 P.S.C.A. § 5104. Specifically, appellants contend that the evidence is insufficient because the University of Pennsylvania campus police officers who approached appellants had informed them, immediately prior to the altercation, that they were not being placed under arrest.*fn11 We find appellants' contention meritless in light of the evidence presented in the court below. 18 P.S.C.A. § 5104 provides:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting

[ 381 Pa. Super. Page 597]

    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 ...


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