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[U] Commonwealth v. Wine

Superior Court of Pennsylvania

March 7, 2014



Appeal from the Judgment of Sentence January 10, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000456-2012 CP-40-CR-0000839-2012




Lawrence J. Wine appeals from the judgment of sentence imposed in the Court of Common Pleas of Luzerne County after his convictions, in separate jury trials, for resisting arrest[1] and disorderly conduct[2]. Wine now challenges the sufficiency of the evidence leading to those convictions.[3] We affirm.

The charges in this matter arise from two separate incidents. The first incident, resulting in Criminal Information No. 456 of 2012, occurred after Wilkes-Barre Police were dispatched to investigate a possible robbery. After searching the area, Officer Brian Gist noticed Wine and another male matching the description of the robbery suspects walking along the street. Officer Gist instructed both men to stop, but Wine continued walking, and eventually began to run. Officer Gist chased after Wine and eventually apprehended him; Wine then refused to place his hands behind his back to be handcuffed. After repeated requests and Wine's continued refusal to place his hands behind his back, the police took Wine to the ground. Police attempted to force Wine to comply using various methods of increasing severity, until they were ultimately forced to tase him.

In a separate incident, leading to Criminal Information No. 839 of 2012, police were called to a disturbance outside Shanix Bar. Upon arrival, the responding officer saw Wine standing on the sidewalk across the street yelling. The officer approached Wine, who refused to speak to the officer, and instead went into Swizzle Sticks Bar. Once inside the bar, Wine continued yelling despite the officer's repeated requests for him to calm down. The bartender turned down the music to determine what was happening, and patrons began to stare. Wine was arrested and continued to yell once outside the bar, leading neighbors to look out of their windows.

Wine was tried by a jury on each criminal information. After being convicted of the aforementioned crimes, Wine was sentenced on January 10, 2013 to one to twelve months' incarceration for resisting arrest, and six to twelve months' incarceration for disorderly conduct.[4] Appellant filed no post-trial motions. This timely appeal followed, in which Wine raises sufficiency of the evidence claims with regard to his convictions for resisting arrest and disorderly conduct.

Prior to addressing the substance of Wine's claims, we must determine whether they have been properly preserved. In its Pa.R.A.P. 1925(a) opinion, the trial court suggests Wine's 1925(b) statement does not provide the requisite specificity as to which elements of the charged offenses remained unproven at trial. As such, the trial court believes Wine has failed to preserve the sufficiency issues raised on appeal, and has accordingly waived the claims. Rule 1925(b) requires a statement that shall "[c]oncisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(vi). In Commonwealth v. Williams, 959 A.2d 1252, (Pa.Super. 2008), this Court held that where a Rule 1925(b) statement fails "to articulate the specific elements of any crime which he deems the evidence presented at trial failed to sufficiently establish, " the claim is waived. Id. at 1257-58. Nevertheless, in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007), our Supreme Court held that, in a relatively straightforward case, an appellate court may afford sufficiency review where the appellant's claim is readily apprehended. Id. at 1060. Based on the rule articulated in Laboy, we conclude that Wine's Rule 1925(b) statement provides sufficient detail to identify the pertinent issues, and we will review his claims.

In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa.Super. 2000).

Wine was convicted of resisting arrest, which is defined as follows:
§ 5104. Resisting Arrest.
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.

18 Pa.C.S.A. § 5104.

Wine argues that he did not injure or attempt to injure the officers during the incident in question and, thus, should not have been convicted of resisting arrest.[5] Wine claims his refusal to place his hands behind his back did not constitute resisting arrest. We disagree.

The statutory language defining the crime of resisting arrest "does not require the aggressive use of force such as striking or kicking of the officer." Commonwealth v. Miller, 475 A.2d 145, 146 (Pa.Super. 1984). Here, Officers Gist and Joseph Ziegler testified for the Commonwealth. Both officers testified extensively as to the difficulty they experienced in arresting Wine. Officer Gist testified he first approached Wine on foot. N.T. Trial, 11/5/12, at 33. He then ordered Wine and the other individual to stop walking. Id. Wine began to run away from Officer Gist, leading him on a foot chase throughout the area, including running across the street through traffic. Id. at 35-36. Officer Gist testified that eventually he and Officer Ziegler were able to contain Wine enough for Officer Gist to take him to the ground. Id. at 37. At that time, Officer Gist and Officer Ziegler began instructing Wine to remove his arms from under his body, but Wine refused. Id. at 39. Officer Gist testified he next attempted to gain control and force Wine's compliance by performing a palm strike on Wine's lower back, however, the palm strike was ineffective, and Officer Gist was forced to administer two dry stuns with a taser. Id. at 40-41.

Officer Ziegler testified that when he arrived at the scene, Officer Gist was pursuing Wine on foot. Id. at 89. Officer Ziegler testified Officer Gist took Wine to the ground, and that Officer Ziegler then attempted to assist in handcuffing Wine, however, Wine refused to place his hands behind his back. Id. at 90. Officer Ziegler attempted to force Wine's compliance by performing a hand compliance hold behind Wine's ear, but Wine continued to resist until Officer Gist tased Wine. Id. at 90-91.

In Commonwealth v. McDonald, 17 A.3d 1282 (Pa.Super. 2011), this Court found a defendant's refusal to place his hands behind his back, forcing the arresting officer to use a taser to effectuate the arrest, provided "sufficient evidence to show that police were required to use substantial force to arrest appellant" under section 5104. Id. at 1285-86. After leading the arresting officer on a foot chase, police caught up with McDonald when he slipped on wet grass. Id. at 1286. Multiple officers were needed to hold McDonald to the ground, and the officers "struggled to force his hands behind his back." Id. Despite the officers' threat to tase McDonald if he refused to place his hands behind his back, he continued to refuse to submit to their authority. Id. The officers were forced to use a taser, and only then did he submit. Id. Based on these circumstances, this Court found sufficient evidence to convict McDonald of resisting arrest.

Likewise, in this case, there is sufficient evidence to convict Wine of resisting arrest. Wine forced Officer Gist to chase him on foot. Once Officer Gist caught up to Wine, Wine placed his hands under his body to prevent Officers Gist and Ziegler from arresting him. Wine refused to comply with orders to place his hands behind his back, forcing Officer Gist to resort to palm strikes, hand compliance holds, and tasing to compel Wine to place his hands behind his back. This is sufficient evidence to demonstrate substantial force was required to overcome the resistance, and convict Wine of resisting arrest. Therefore, the Commonwealth presented sufficient evidence to establish the elements of resisting arrest, and we affirm the trial court's judgment of sentence on this conviction.

Wine was also convicted of disorderly conduct. Disorderly conduct is defined as follows:

§ 5503. Disorderly Conduct.
(a) Offense defined. – A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise.

18 Pa.C.S.A. § 5503(a)(2).

Wine specifically challenges the sufficiency of the evidence presented by the Commonwealth as to Wine's specific intent to cause public inconvenience, annoyance or alarm, or recklessly create a risk thereof. Wine argues the Commonwealth failed to prove his actions posed a public inconvenience because there was no testimony that Wine's actions affected any member of the public. Furthermore, Wine argues a traffic stop was already in progress in the area, and the Commonwealth failed to present any evidence that Wine further contributed to the already chaotic scene. We disagree.

At trial, Officer Michael Lehman testified that when he arrived at the scene, a Kingston Borough police vehicle was parked in front of Shanix Bar. N.T. Trial, 11/14/12, at 39. Wine was across the street, in front of Swizzle Sticks Bar, yelling and screaming profanities about and in reference to the police parked in front of Shanix Bar. Id. at 40. Officer Lehman approached Wine to inquire about his behavior, and to determine whether he was involved in the situation that led to the other police presence at the scene. Id. at 41. Wine did not respond to him, and instead went inside Swizzle Sticks Bar, where he continued yelling and screaming profanities, particularly about Officer Lehman. Id. Officer Lehman testified the bartender turned the jukebox down due to the incident. Id. at 42. At that time, Wine was placed under arrest, handcuffed, and escorted outside. Id. at 45. Despite Officer Lehman's instructions to calm down, Wine continued to scream profanities outside of Swizzle Sticks Bar, eventually drawing the attention of neighbors in the area. Id. at 44.

The specific intent element of the crime "may be met by a showing of a reckless disregard of the risk of public inconvenience, annoyance, or alarm, even if the appellant's intent was to send a message to a certain individual, rather than to cause public inconvenience, annoyance, or alarm." Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa.Super. 2005) (citation omitted). The specific intent of the crime is satisfied when an offender shouts obscenities in the presence of members of the general public "although the principal intent of the defendant may have been to insult the police rather than to cause public inconvenience, annoyance or alarm." Commonwealth v. Hughes, 410 A.2d 1272, 1274 (Pa.Super. 1979).

In Hughes, the defendant argued her conviction for disorderly conduct was inconsistent with the evidence. The evidence presented at trial, however, demonstrated Hughes had been shouting threats and obscenities at members of the public and police officers at an early hour in the morning. Hughes argued she engaged in this behavior because she believed she and her co-defendant were arrested without cause, however, this Court found her argument without merit. Hughes' mistaken belief that she was justified in taunting the police did not "vitiate her recklessness with regard to annoyance of the other members of the public in the vicinity." Hughes, 410 A.2d at 1274.

Like the defendant in Hughes, Wine's shouting obscenities at police officers both inside Swizzle Sticks Bar and outside in the street during the early morning hours constitutes disorderly conduct. Such behavior demonstrates a reckless disregard for the public inconvenience, annoyance, and alarm caused by Wine's actions. In his brief, Wine asserts that because a separate police incident was concurrently taking place outside of Shanix Bar he cannot be guilty of disorderly conduct as the area was already disturbed. This argument is without merit, as the definition of the crime does not consider surrounding events that might mitigate the effects of the defendant's behavior.

Judgment of sentenced affirmed.

Judgment Entered.

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