Appeal from the Judgment of Sentence, February 27, 2013, in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0005480-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND PLATT, [*] JJ.
FORD ELLIOTT, P.J.E.
This is an appeal from the judgment of sentence entered February 27, 2013, in the Court of Common Pleas of York County following appellant's convictions for resisting arrest, 18 Pa.C.S.A. § 5104, and harassment, 18 Pa.C.S.A. § 2709(a)(1). Herein, the sole issue presented is whether the trial court erred in denying his pre-trial writ of habeas corpus. We affirm.
A brief recitation of the facts, as established at the habeas corpus hearing, follows. On June 29, 2012, Sergeant Brian Wilber and Officer Jennifer Kennedy responded to 2683 Carnegie Road, Apartment 203, for a reported domestic incident. (Notes of testimony, 12/19/12 at 4-5.) Upon arrival, Heriberto Ramos ("Ramos") directed the officers to the apartment, where they heard people yelling and screaming from inside. (Id. at 5.) Once they entered the rear bedroom of the apartment, the officers observed appellant screaming at Daniela Rodriguez ("the victim") while he twisted her arm in an awkward position. (Id. at 6.) Appellant then turned and began to approach the officers in an aggressive manner. (Id.) Officer Kennedy pointed her taser at appellant and instructed him to put his hands up. (Id. at 24.) Sergeant Wilber placed appellant in handcuffs and led him to the living room for the safety of the officers and other individuals present, including a young child. (Id. at 7-8, 24.)
Officer Kennedy remained in the bedroom to talk to the others present, including appellant's girlfriend, Vimary Alicea ("Alicea"); Alicea is the victim's daughter. (Id. at 24-25.) The victim indicated that appellant had attempted to hit Alicea, and when she stepped in the middle, appellant grabbed and twisted her arm. Officer Kennedy led them into the living room and appellant became aggressive again. (Id. at 26.) Appellant yelled to Alicea, "I want you dead, I want you to die"; Alicea responded "you always want to hurt me." (Id.)
At this point, appellant was informed that he was under arrest for harassment; the officers attempted to remove him from the apartment for the welfare of the others present, including the young child. (Id. at 7-8.) Appellant resisted the officers' attempts to have him stand up. (Id. at 26.) Appellant, who was visibly angry, threw himself and the officers into a closet door. (Id. at 27.) Appellant continued to resist the officers as they tried to lead him down the hallway and stairwell. (Id. at 8, 27.) Near the top of the stairwell, appellant pushed the officers into a door. (Id. at 9.) Fearful they would fall down the stairwell, Sergeant Wilber warned appellant that he would be tased if he did not comply. (Id.) Appellant continued to resist the officers and was tased several times as the officers attempted to lead him to the police vehicle. (Id.)
On June 30, 2012, appellant was charged at No. CP-67-CR-5480-2012 with one count of resisting arrest, 18 Pa.C.S.A. § 2709. Three citations were also issued charging appellant with harassment graded as a summary offense. On November 9, 2012, appellant filed a petition for writ of habeas corpus arguing that his arrest was unlawful and he had the right to resist an unlawful arrest. A hearing was held before the Honorable Richard K. Renn on December 19, 2012. Thereafter, on January 4, 2013, the trial court denied appellant's petition. Following a jury trial, appellant was convicted of resisting arrest, and the trial court subsequently convicted appellant of one count of harassment. On February 27, 2013, appellant was sentenced to 4 to 23 months' imprisonment.
A timely notice of appeal was filed on March 11, 2013. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion, essentially relying on its January 4, 2013 order. The following is the sole issue presented on appeal:
I. WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT'S PETITION FOR WRIT OF HABEAS CORPUS IN THAT THE OFFICERS ARREST OF APPELLANT WAS UNLAWFUL? Appellant's brief at 4.
Appellant essentially argues that the judgment of sentence should be vacated because the evidence was insufficient at the preliminary hearing to hold him over for trial. Appellant avers that the officers "lacked legal authority [to] arrest him without a warrant for the summary offense of Harrassment." (Appellant's brief at 8.) He claims that as he was unlawfully arrested, he cannot be convicted of resisting arrest. (Id.)
At the outset, we note that from a procedural standpoint, we find that appellant's challenge to the Commonwealth's establishment of a prima facie case at the habeas corpus proceeding is moot. We acknowledge that the appropriate procedural means by which an accused may challenge the sufficiency of the Commonwealth's evidence at the pre-trial stage is a petition for a writ of habeas corpus. Commonwealth v. Hetherington, 460 Pa. 17, 23, 331 A.2d 205, 209 (1975). "An order granting a defendant pretrial habeas relief is immediately appealable by the Commonwealth since it terminates the prosecution. However, an order denying a pretrial petition for writ of habeas corpus is not immediately appealable as of right." Commonwealth v. McMullen, 721 A.2d 370, 372 n.2 (Pa.Super. 1998) (citations omitted). Rather, as this court explained in Commonwealth v. Taylor, 596 A.2d 222 (Pa.Super. 1991), appeal denied, 529 Pa. 648, 602 A.2d 859 (1992):
appellant must, at least, immediately petition this court for review of the denial of his petition for writ of habeas corpus, based on the insufficiency of evidence presented at the preliminary hearing. Even then, it is doubtful that this court will grant review. ...