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June 25, 1997


Appeal from the Judgment of Sentence of the Court of Common Pleas, Crawford County, Criminal Division, at No. 1994 - 75. Before MILLER, J.

Appeal from the JUDGMENT OF SENTENCE July 31, 1996. In the Court of Common Pleas, Criminal Division Crawford County, No. 1994-75. Before MILLER, J.

Before: Mcewen, P.j., Cavanaugh and Brosky, JJ. Opinion BY Brosky, J. Cavanaugh, J. files a Dissenting Opinion.

The opinion of the court was delivered by: Brosky


Filed June 25, 1997

This is an appeal from a judgment of sentence imposed upon appellant after she was convicted of aggravated assault, resisting arrest and harassment. Appellant raises one general question, whether the Commonwealth failed to present sufficient evidence to sustain the convictions for aggravated assault and resisting arrest? We reverse and remand.

Appellant's conviction stemmed from an incident which occurred on December 13, 1993. Appellant was embroiled in a dispute with the local telephone service provider, Alltell, over a right-of-way or easement for the placement of underground telephone wires on her property. Earlier in the year appellant and her husband had wished to build a pole barn on their property and began preparations to do so. Appellant called Alltell and the gas company in April to request that they come out to the property to mark the location of the telephone wires and gas pipes. The gas company promptly came out and put flags in the ground to designate their pipes but appellant received no response from Alltell. According to appellant, after several more telephone calls Alltell eventually responded that they didn't have any lines on appellant's property. Appellant's husband then began construction of the barn in June of 1993. During some digging for the barn phone lines were cut. After appellant alerted Alltell of the incident an Alltell crew came out to the property to repair the lines. Appellant had some concern about the presence of the telephone lines because she had been led to believe that there weren't any on her property. She told the Alltell people that they could splice the lines together but that they could not bury them. She further indicated that she wanted to talk to someone about the presence of the lines. The Alltell workers indicated that someone would contact her about the lines shortly. However, as of December 13, 1993, appellant had not been contacted by Alltell in reference to the lines.

In the meantime appellant reviewed the right-of-way agreement and noticed that it had been signed by only one of her parents from whom she had inherited the property. Since her parents were married and had owned the property by the entireties at the time of the execution of the right-of-way agreement appellant developed the opinion that a valid right-of-way had not passed as the signature of both her parents would have been necessary to pass good title. On December 13, 1993, an Alltell supervisor, Clarence Dine, contacted appellant to set up a meeting to see if they could get the wires permanently buried. Mr. Dine had been informed that the property owner had been denying Alltell permission to enter the property to fix the lines. A meeting was set up for December 20th.

After speaking with appellant Mr. Dine called appellant's sister-in-law, Theresa Linz, who lives near appellant, to see if he could meet with her on the 20th also. Ms. Linz's telephone service is provided by the lines which went across appellant's property and Mr. Dine wanted to meet with all parties affected by the situation. While Mr. Dine was speaking with Ms. Linz the line went dead. Based upon the sound the disconnection made Mr. Dine developed an opinion that the line had been cut. Mr. Dine then proceeded to appellant's property with another supervisor, Dale Beers, to inspect the wires and found them disconnected or "cut" in the vicinity of appellant's barn, a spot where they had been spliced before. Appellant then appeared and told Mr. Dine that he had no right to be there and ordered him off the property. Appellant also allegedly threatened to shoot them if they did not leave. Mr. Dine and Mr. Beers left the Wertelet property and reported the incident to their supervisor who consulted an attorney for his opinion on the validity of the right-of-way agreement. The attorney, Andy Bacallao, examined the document and opined that Alltell had a valid right-of-way. He then called appellant and attempted to inform her that Alltell had a valid right-of-way. Appellant reportedly acknowledged the existence of the document but, nevertheless, threatened to shoot anyone who came upon her property.

Having been told that Alltell had a valid right-of-way, Mr. Dine alerted the Pennsylvania State Police of appellant's threats and requested police assistance to bury the lines. Two state troopers accompanied an Alltell crew to appellant's property where, upon finding appellant absent, the crew began digging a ditch to bury the wires. Appellant returned shortly after the crew began work. The troopers, noticing appellant driving up the road, blocked her vehicle's access to the property. Appellant parked the vehicle and walked onto her property in the area of the workers. Appellant told the workers and the troopers that they were trespassing and ordered them off the property. The workers responded that they had a valid right-of-way and asked appellant to stop interfering with their work. Appellant then grabbed a garden rake and began pushing dirt into the ditch. The troopers interceded at that point and tried to take appellant's rake which she refused to give up. They then attempted to place her under arrest. Appellant resisted initial attempts to be placed in custody by struggling with the officers and kicking one of the troopers, Trooper Funk, in the shin area twice. The troopers were then successful in handcuffing her and she was arrested and charged with a variety of offenses including aggravated assault, simple assault, resisting arrest, and disorderly conduct.

Appellant was tried in a combination bench and jury trial in September 1994, the court found appellant guilty of harassment but not guilty of criminal mischief, both summary offenses. The jury returned guilty verdicts on the aggravated assault, resisting arrest and disorderly conduct charges and a not guilty verdict on a charge of simple assault. Appellant was sentenced and took a direct appeal to this court. Upon consideration of appellant's appeal, we remanded the case back to the trial court to allow a hearing to determine whether appellant had been informed by her counsel of her right to testify. Commonwealth v. Wertelet, 446 Pa. Super. 352, 666 A.2d 1087 (1995). Upon remand a hearing was held after which appellant was awarded a new trial. A retrial was held on June 11, 1996, in which appellant represented herself. At the close of all testimony appellant made an oral motion for judgment of acquittal. The court granted the motion as to disorderly conduct and denied it as to the resisting arrest charge. The order is silent as to the aggravated assault charge. *fn1 Appellant was sentenced for a second time and once again filed a direct appeal.

Appellant argues that her conviction for resisting arrest cannot stand because, among other things, her arrest was unlawful. *fn2 We agree. In Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995), our Supreme Court reaffirmed the proposition that the underlying arrest must be "lawful" in order for a charge of resisting arrest to be sustained. More importantly, in Biagini the determination that the arrest was unlawful resulted from an after the fact Conclusion by this court on appeal that the conduct supporting the arrest did not constitute the crimes charged, i.e., was lacking in probable cause; it was not based upon the perspective of whether the police officers acted in good faith and believed a crime had been committed at the time of arrest.

Interestingly, almost all of the charges leveled against appellant emanate from her physical resistance to arrest. It is not as if she had committed a felony or even a misdemeanor and then when apprehended she resisted being placed in custody. Rather, and particularly if one believes in one's right to protect his/her property from trespassers, the situation here would be more similar to one where police approached someone at a corner who had done nothing wrong and told him he was under arrest and then charged him with resisting arrest, and only resisting arrest, when he offered physical resistance. Here, other than the innocuous "disorderly conduct" charge, which was found unsustainable at trial *fn3, appellant did nothing to justify her arrest until the troopers attempted to arrest her. *fn4 This is almost an exact replaying of Biagini. *fn5

In Biagini, a police officer investigating some loud shouting at 3:00 A.M. encountered Biagini in the rear of his yard. When asked about the disturbance Biagini responded there was no problem but also pointed at two individuals across the alley. The officer instructed Biagini to remain where he was while he questioned the other two individuals. However, Biagini went inside his house instead. When the officer returned he saw Biagini entering his house. The officer went to the door and began knocking on it. Biagini responded by yelling "who the [expletive] is tearing down my door." The officer asked Biagini to come outside and answer a few questions. Biagini then refused and, in vulgar terms, ordered the officer off his porch. Biagini was then arrested for disorderly conduct and public intoxication. On appeal we ...

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