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HomeMy WebLinkAbout02-0401 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KARLOS EUGENE CADDELL 02-0401 CRIMINAL TERM IN RE: PETITION FOR A WRIT OF HABEAS CORPUS OPINION AND ORDER OF COURT Bayley, J., June 5, 2002:-- Defendant, Karlos Eugene Caddell, is charged with counts of misdemeanor disorderly conduct,1 resisting arrest,2 and two counts of simple assault.3 He filed a petition for a writ of habeas corpus, claiming that there is insufficient evidence to proceed to trial on any of the counts. A hearing was conducted on May 21, 2002. Officer Matthew Kennedy, of the Carlisle Borough Police Department, testified that he received a dispatch at 7:00 a.m., on the morning of December 8, 2001. The dispatch, which did not state the source, was that a suspicious black male, wearing a black jacket and a gray sweat top with a hood, was sitting on a car and loitering in the Hanover Manor apartment complex. Officers Kennedy and O'Leary drove to the Hanover Manor apartments. They saw a person fitting the description in the report, sitting on a red BMW. They went up to the person, soon to be the defendant Karlos 1 18 Pa. C.S. § 5503. 2 18 Pa.C.S. § 5104. 3 18 Pa.C.S. § 2701(a)(1). 02-0401 CRIMINAL TERM Caddell, and asked him, (1) for his identification, and (2) to take his hands out of his pockets. Defendant did not take kindly to these requests. He shouted at the officers, asking them why they were "disrespecting" him, and said, "why don't you fuckers leave me alone. I live here." The officers were not about to leave, and again asked defendant for his identification, which defendant would not give them. Officer Kennedy testified, that at that point defendant was under investigative detention and was not free to go. Officer O'Leary asked defendant if the car he was sitting on was his car, and defendant said, "no it's my fucking girlfriend's car." Officer O'Leary again asked for identification, and defendant said that he "lived there and didn't have to give him a fucking ID." Officer O'Leary told defendant that he "had a report of someone loitering and prowling and messing with these cars.''4 Defendant then said, "1 fucking live here and I'll show you my fucking ID." He then went to a black Nissan, got his driver's license, and threw it at Officer O'Leary. Defendant then called Officer Kennedy a mother fucker and cocksucker. Officer Kennedy testified that "at this time people were starting to come out." There were some military policemen nearby to whom defendant shouted that they were, "mother fuckers, I know you are the ones who called, come over here you cocksuckers, you fucking pussy.''5 At that point, Officer O'Leary placed defendant under arrest for summary disorderly conduct. He grabbed defendant by the This was not an accurate statement of the dispatch. The United States Army War College is nearby. -2- 02-0401 CRIMINAL TERM shoulders. Defendant leaned into him and tried to twist and pull away, telling him to get his "fucking hands off of me." The officer spun defendant onto the red BMW. He grabbed defendant's forearms and starting bringing them behind his back to handcuff him. Defendant was twisting and pushing. The officers, along with one of the military policemen who came over to help, forced defendant to the ground. This military policeman was the person who called in the suspicious person report to the police. Defendant was cuffed, searched, and put into a police car as he told the officers, "you are fucking honkies, and you are just harassing me because I'm black." Officer O'Leary then told defendant "to shut up or he would be arrested for a misdemeanor disorderly conduct." Defendant's girlfriend had arrived, and Officer Kennedy asked her to calm defendant down, and told her if he calmed down he would issue defendant a citation and he could be on his way. Officer Kennedy then rolled down the police car window, but defendant kicked at the inside of the car. Officer O'Leary opened the door, went inside the car, and used a maneuver on defendant's hypoglosal nerve to get him under control. Defendant did live at the Hanover Manor apartments. The red BMW was his girlfriend's car. The black Nissan was his car. As a result of the incident, Officer O'Leary had "some knee pain," and Officer Kennedy had a "slight strain in the back." DISCUSSION In evaluating an accused's entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the accused did the crimes charged. Commonwealth v. Hock, 728 A.2d 943 -3- 02-0401 CRIMINAL TERM (Pa. 1999). The Commonwealth need not prove the elements of a crime beyond a reasonable doubt; rather, the prima facie standard requires evidence of the existence of each and every element of the crime charged. Commonwealth v. Martin, 727 A.2d 1136 (Pa. Super. 1999). I. IS THERE A PRIMA FACIE CASE THAT DEFENDANT COMMITTED DISORDERLY CONDUCT? The Crimes Code at 18 Pa.C.S. Section 5503 provides: (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: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. (b) Grading.--An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense. (Emphasis added.) In Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999), the facts were: On April 13, 1995, at 9:35 a.m., Palmyra Police Officer Kenneth Shank, who was familiar with Hock and aware that her license was suspended, observed Hock driving into the parking lot of her apartment building. The officer positioned his police cruiser alongside Hock's automobile and requested that she produce her driver's license. Hock refused, stating that she had not been driving, but was merely engaged in paperwork. Hock then exited her vehicle and suggested to Officer Shank that she was a victim of frequent police harassment. Remaining in his cruiser, Officer Shank indicated that if his verification of Hock's driving -4- 02-0401 CRIMINAL TERM record revealed that her privileges were suspended, she would receive a citation by mail. As Hock walked away from the police vehicle, she uttered, "F__ you, a ," in a normal tone of voice audible to Officer Shank. Only Hock and the officer were present, and the officer was seated in his cruiser. He then existed his vehicle and advised Hock that she was under arrest for disorderly conduct. Hock quickened her pace toward her building. Officer Shank pursued her up one flight of stairs, physically restraining her as she attempted to enter her apartment. As the officer placed handcuffs on Hock, he repeated that she was being arrested for disorderly conduct. Hock pressed her arms tightly to her body and curled into a ball on the floor, shouting protestations. She then kicked the patrolman several times, causing him to sustain a cut finger and jammed wrist. Hock was subsequently charged with resisting arrest, 18 Pa.C.S. § 5104, and disorderly conduct, 18 Pa.C.S. § 5503(a). The Supreme Court of Pennsylvania defined the issue as whether a single profane remark to a police officer provided a sufficient basis for an arrest for an offense of disorderly conduct where only the defendant and the officer were present, and defendant's behavior was neither threatening nor violent. The trial court had dismissed a charge of resisting arrest by holding that Hock's offensive language alone did not support a charge of disorderly conduct. The Supreme Court of Pennsylvania stated: whether a defendant's words or acts rise to the level of disorderly conduct hinges upon whether they cause or unjustifiably risk a public disturbance. "The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder." Commonwealth v. Greene, 410 Pa. 111, 115, 189 A.2d 141, 144 (1963). To support its contention that Hock's profanity constituted a violation of Section 5503(a)(1), thus giving the officer probable cause to arrest, the Commonwealth relies upon Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980), for the proposition that the use of fighting words amounts to disorderly conduct.3 In Mastrangelo, this Court affirmed a disorderly conduct conviction where the defendant had, on two -5- 02-0401 CRIMINAL TERM consecutive days, followed a meter maid and shouted vulgarities at her in a threatening manner. This conduct was observed by bystanders on the street, and so frightened the meter maid that she could not patrol that area for a week. The present case is clearly distinguishable in that Hock's single epithet, uttered in a normal tone of voice while walking away from the officer, did not alarm or frighten him, and there were no bystanders. First, we are not persuaded that Hock's epithet constituted fighting words. The Mastrangelo court's conclusion that the defendant had utilized fighting words rested on the fact that the defendant had hurled epithets at the meter maid in a loud, boisterous and disorderly fashion. Id. at 262, 414 A.2d at 58. Indeed, in determining whether words constitute fighting words, "[t]he circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether [the] words had a direct tendency to cause acts of violence by [others]." Lamar v. Banks, 684 F.2d 714 (11th Cir. 1982) (internal quotation marks omitted); see Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J., concurring) (observing that "words may or may not be 'fighting words' depending upon the circumstances of their utterance"); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (upholding a state statute in part because it had been interpreted to do "no more than prohibit the face-to-face words plainly likely to cause a breach of the peace"). Under the factual circumstances of the present case, a trier of fact could not reasonably find that Hock's comment risked an immediate breach of the peace. Additionally, we decline to accept the Commonwealth's suggestion that the police are likely to respond to verbal insults with unlawful 3 As previously noted, fighting words are words that "'by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" Mastrangelo, 489 Pa. at 262, 414 A.2d at 58 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). The use of such words is not a constitutionally protected right. Id. -6- 02-0401 CRIMINAL TERM violence. Indeed, to the contrary, that police officers have a legal duty to enforce the law is sufficient reason to presume that they will not violate the law. See generally City of Chicago v. Blakemore, 15 III.App.3d 994, 305 N.E.2d 687, 689 (1973) ("[W]ords addressed to an officer in an insolent manner do not without any other overt act tend to breach the peace because it is the sworn duty and obligation of the officer not to breach the peace and beyond this to conduct himself so as to keep others from so doing"). We recognize that the police often place their lives in jeopardy to ensure the safety of the citizenry and thus perform a task that is valuable, necessary and, at times, heroic. Accordingly, the prospect of a citizen verbally abusing a police officer appears particularly objectionable. It does not follow, however, that Section 5503(a) may be used as a vehicle to protect the police from all verbal indignities, especially under the dubious hypothesis that officers are likely to break the law when affronted. The police must expect that, as part of their jobs, they will be exposed to daily contact with distraught individuals in emotionally charged situations. See generally Commonwealth v. Weiss, 340 Pa. Super. 427, 434, 490 A.2d 853, 856 (1985). Moreover, the offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definite objective, it is intended to preserve the public peace; it has thus a limited periphery beyond which the prosecuting authorities have no right to transgress any more than the alleged criminal has the right to operate within its clearly outlined circumference. Greene, 410 Pa. at 117, 189 A.2d at 145.4 In sum, we hold that Hock's remark did not constitute disorderly conduct, and the officer thus lacked probable cause to arrest her for that offense. Accordingly, we reverse the judgment of the Superior Court insofar as it relates to the charge of resisting arrest, and reinstate the trial court's order dismissing that charge. (Emphasis added.) 4We also note that an interpretation of Section 5503 imposing a per se proscription on remarks of the kind uttered by Hock would implicate substantial First Amendment concerns. See Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). -7- 02-0401 CRIMINAL TERM In Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. 2000), the appellant was convicted of disorderly conduct. Appellant was in a car at a public intersection where some roadwork was being performed. She encountered an employee of a borough's street department who was directing traffic and monitoring the traffic with flags. When the employee failed to communicate with appellant by the use of the flags, the employee walked over to appellant's car and talked to her. The conversation ended when appellant directed the phrase "fuck you" to the employee. The employee walked back toward the intersection. Appellant then drove passed him, directed the words "fuck you asshole" towards him and, at the same time, added a hand gesture consisting of an extended middle finger. The Superior Court of Pennsylvania reversed the conviction, stating: Here, the record supports a conclusion that Appellant's use of the "F-word" and use of the middle finger were angry words and an angry gesture having nothing to do with sex. The words and gesture were meant to express disrespect to, and to offend, the Borough employee. The record fails to support a conclusion that the words and gesture, as used in that circumstances of Appellant's case, appeal to the prurient interest or a depiction, in a patently offensive way, of relevant sexual conduct. Thus, while the words and conduct used by Appellant were disrespectful, insulting and offensive, they were, in the circumstances of this case, not "obscene" within the meaning of Section 5503(a)(3). Further, the record fails to support a conclusion that Appellant's comment risked an immediate breech [sic] of the public peace. See, Hock, 728 A.2d at 946-47. On review of the record, the evidence is insufficient to support a conviction of disorderly conduct under Section 5503(a)(3). In the case sub judice, the dispatch that Officers Kennedy and O'Leary responded to was that a suspicious black male, wearing a black jacket and gray sweat -8- 02-0401 CRIMINAL TERM top with a hood, was sitting on a car and loitering in the Hanover Manor apartment complex at 7:00 a.m. in the morning. The officers did not know the source of the report or seek clarification of what was suspicious about the black male's conduct. When they arrived at the Hanover Manor apartments they saw a black man sitting on a car. There was nothing suspicious about what they saw. There is no crime of loitering in the daytime.6 Even though there was no reasonable suspicion that criminal activity was afoot, the officers did not initiate a mere encounter with defendant, such as asking him what he was doing. Rather, they ordered defendant to take his hands out of his pockets and provide them with identification. An investigative detention must be supported by reasonable suspicion of criminal activity Commonwealth v. Ellis, 541 Pa. 285 (1995). Since there was none, defendant was illegally detained because no reasonable person would have believed that he was free to leave.7 Commonwealth M¢Clease, 750 A.2d 320 (Pa. Super. 2000). It is hardly surprising that defendant, who is young and black, who lived in the Hanover Manor apartments, and who was sitting on his girlfriend's car at 7:00 a.m. in the morning in the Borough of Carlisle, would (1) feel that the police officers were 6 The Crimes Code at 18 Pa.C.S. Section 5506 provides: Whoever at nighttime maliciously loiters or maliciously prowls around a dwelling house or any other place use wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree. 7 Officer Kennedy acknowledged that defendant was detained for investigation and was not free to leave. -9- 02-0401 CRIMINAL TERM disrespecting him, (2) believe that they were harassing him because he was black, and (3) think, correctly, that the nearby military policemen were responsible for his detention. While civility would have warranted a more muted response to his illegal detention, it is also not surprising in this age in which bad language is epidemic that defendant would voice his frustration and embarrassment to the police in an uncivil manner. The only evidence is that defendant's bad language was directed at Officers Kennedy and O'Leary and the military policemen who started the whole thing. Officer Kennedy did testify that "some people were starting to come out" before defendant shouted his epithets at the military policemen. He did not testify that those people were affected in any way by defendant's conduct. Officer O'Leary then arrested defendant for summary disorderly conduct.8 The record fails to support a prima facie case that the words used by defendant under the circumstances of his illegal detention, appealed to the prurient interest in a patently offensive way of sexual conduct. Rather, the evidence shows that the words used by defendant were disrespectful, insulting and offensive, and were directed only at the police. In that context, they were not "obscene" within the meaning of Section 5503(a)(3) of the Crimes Code, nor where they fighting words that threatened violence to the police or an immediate breach of the peace. It was the arrest of defendant that prompted his resistance. Thus, there is no prima facie case that defendant's words, in the context the evidence shows they were used, constituted disorderly conduct. Accordingly, we will dismiss that count. 8 As later filed, this charge became a misdemeanor. -10- 02-0401 CRIMINAL TERM II. IS THERE A PRIMA FACIE CASE THAT DEFENDANT COMMITTED RESISTING ARREST? The Crimes Code at 18 Pa.C.S. Section 5104 provides: A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effectuating 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. (Emphasis added.) An underlying arrest must be lawful in order for a count of resisting arrest to be sustained. Commonwealth v. Biagini, 540 Pa. 22 (1995).9 Pa.R. CrimP. 400 provides, "Criminal proceedings in summary cases shall be instituted.., by... (4) arresting without a warrant when the arrest is specifically authorized by law." An arrest without a warrant is authorized by law where there is a breach of the peace, such as disorderly conduct. Commonwealth v. Williams, 390 Pa. Super. 493 (1990); Commonwealth v. Bullers, 410 Pa. Super. 176 (1991). Having found that there was no legal basis to arrest defendant for disorderly conduct, which is an element of the offense of resisting arrest, there is no prima facie case that he committed that crime. Therefore, we will dismiss the count of resisting arrest. 9 An unlawful arrest, however, does not act as an affirmative defense to a charge of assaulting a police officer. Id. -11- 02-0401 CRIMINAL TERM III. THERE A PRIMA FACIE CASE THAT DEFENDANT COMMITTED THE COUNTS OF SIMPLE ASSAULT AGAINST THE TWO POLICE OFFICERS? The Crimes Code provides at 18 Pa.C.S. Section 2701(a), "a person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." "Bodily injury" means "Impairment of physical condition or substantial pain." 18 Pa.C.S. § 2301. In Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997), two state troopers arrested the defendant. The defendant struggled with the troopers and kicked one of them in the shin area twice. The troopers then handcuffed the defendant. Defendant was convicted, inter alia, of aggravated assault on a police officer. The Superior Court of Pennsylvania reversed that conviction, stating: Although not necessarily controlling, the connotation of bodily injury, a sort of common person understanding of the term, suggests a physical event unlike those commonly occurring in normal life which, although unpleasant and somewhat painful, do not seriously interrupt one's daily life. It is not disputed that physical resistance can be severe enough to satisfy the elements of a more serious offense, i.e., aggravated assault. However, there is really no justification apart from overzealousness to apply the section so as to subsume the crime of resisting arrest and/or other lesser offenses. The natural implication of having a provision for resisting arrest and aggravated assault of a police officer is to differentiate criminal conduct according to its severity and provide appropriate punishment for that conduct. However, an equally natural and logical implication of having a provision for resisting arrest and -12- 02-0401 CRIMINAL TERM aggravated assault of a police officer is the recognition that they are not one of the same thing. That is, that there are physical acts of resistance which do not rise to the level of an aggravated assault. If appellant's conduct is considered to be an aggravated assault it is difficult to imagine an instance of resisting arrest which will not also be an aggravated assault as almost all acts of resisting arrest are likely to involve some physical resistance which will cause an officer some physical pain or discomfort. Further, as the name of the offense implies, aggravated assaults are assaults of a rather serious nature. The Superior Court concluded: We believe the above examples are on par with the nature of the affront committed here by appellant. There is no evidence that appellant reared back and kicked Trooper Funk as hard as she could. Indeed, she kicked him with the back of her heel as she was flailing about and squirming while the troopers attempted to handcuff her. Trooper Funk was not seriously impaired by the kicks, he was able to continue working, and he did not report even any bruising or swelling. Trooper Funk's characterization of the pain as similar to "bumping your shin on a coffee table" aligns the encounter with those described above and does not fall within the general connotation of the terms "injury." Further, it hardly seems consistent with the concept of aggravated assault, an assault of a severe nature, but does seem to fall neatly into the general concept of resisting arrest, harassment or, possibly, simple assault. For all the above reasons we believe the evidence was insufficient to prove that Trooper Funk experienced a "bodily injury" within the meaning of the statute. Consequently, the evidence was insufficient to sustain the conviction for aggravated assault. (Footnotes omitted.) In Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000): Philadelphia Police Officer Mary Drescher, while responding to a radio call, observed appellant hitting an unidentified female and dragging her by her hair toward his vehicle. Appellant released the woman and began running down a nearby driveway, with Officer Drescher in pursuit. Appellant subsequently attempted to hide from the officer. With weapons drawn, Officer Drescher demanded that appellant show his hands, and he slowly obliged. As Officer Drescher attempted to re-holster her weapon, appellant began running toward her. She grabbed him and he punched her in the jaw. -13- 02-0401 CRIMINAL TERM Appellant attempted to run toward his vehicle, but Officer Drescher grabbed his coat and informed him that he was under arrest. While the officer tried to subdue appellant, another officer arrived and provided assistance. During the ensuing fracas, appellant kicked Officer Drescher in the stomach. The two officers repeatedly tried to restrain appellant, but it was only after a third officer arrived on the scene that appellant was placed into custody. In affirming a judgment of sentence for aggravated assault on a police officer in violation of Section 2702(a)(3) of the Crimes Code, the Superior Court of Pennsylvania, distinguishing Commonwealth v. Wertelet, supra, stated: It is clear that appellant's behavior was more egregious than "relatively harmless physical contact with a police officer." It is likewise clear that appellant's victim suffered a more severe injury than the police officer in WeRe/et. Officer Drescher testified that she experienced pain and bleeding from appellant's closed-fist punch to her jaw. And although the officer did not testify to any pain she experienced as a result of appellant's kick, such conduct clearly constitutes an attempt to inflict bodily injury. We hold that a punch to the face of an officer, accompanied by a kick to her stomach, is the very type of conduct prohibited by § 2702(a)(3). See Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995) (bodily injury proved where defendant punched police officer in the face). It is apparent from the record that the Commonwealth presented sufficient evidence to establish that appellant violated § 2702(a)(3). (Emphasis added.) In Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001), a police officer responded to a domestic dispute. The defendant was present, and when the officer tried to find out what the problem was, the defendant became very upset and angry. The officer tried to calm him but he became more aggressive. The defendant then lunged forward with his right fist and struck the officer on the left lower jaw. Relying on Commonwealth v. Wertelet, supra, the trial court, holding that there was no prima -14- 02-0401 CRIMINAL TERM facie evidence of bodily injury, dismissed a charge of aggravated assault on a police officer in violation of Section 2702(a)(3) of the Crimes Code. The Superior Court of Pennsylvania reversed, stating: We refuse to equate a deliberate punch in the face causing swelling and pain with a mild kick to the shins delivered while resisting arrest, which the victim [in Wertelet] described as similar as bumping into a coffee table. Additionally, we agree with the Commonwealth that even if there was no showing of a bodily injury this charge should still have been submitted to the jury as an attempt to cause bodily injury. As is the case with simple assault under § 2701 (a)(1) "[t]he Commonwealth need not establish that the [officer] actually suffered bodily injury; rather, it is sufficient to support a [prima facie case] if the Commonwealth establishes an attempt to inflict bodily injury." See [Commonwealth v. Richardson, 431 Pa. 496 (1994)]. "This intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury." Id. (citing Commonwealth v. Polston, 420 Pa. Super. 233, 616 A.2d 669 (1992), appeal denied, 534 Pa. 638, 626 A.2d 1157 (1993)). In [Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000)], in addition to punching the officer in the mouth, which we found constituted bodily injury, the assailant also kicked the officer in the stomach. We acknowledged this conduct alone "clearly constitutes an attempt to inflict bodily injury" and "is the very type of conduct prohibited by § 2702(a)(3)." Id. 764 A.2d at 586. Accordingly, we hold the evidence presented by the Commonwealth at the hearing below was clearly sufficient to establish a prima facie case against the Appellee. Based on the foregoing, the Order of the trial court is reversed, the charge is reinstated and the case is remanded for trial. (Emphasis added.) In the case sub judice, there is no evidence that either Officer Kennedy or Officer O'Leary incurred bodily injury. "Some knee pain," and a "slight strain in the back," sustained while the officers subdued defendant, is not bodily injury as defined by -15- 02-0401 CRIMINAL TERM the Crimes Code, i.e., "impairment of physical condition or substantial pain." The Crimes Code at Section 901 provides that: A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. (Emphasis added.) A person acts intentionally with respect to a material element of an offense if "it is his conscious object to engage in conduct of that nature or to cause such a result." 18 Pa.C.S. 302(b)(1)(i). There is no evidence that defendant, while resisting being taken into custody, either struck or attempted to strike either Officer Kennedy or Officer O'Leary. The facts are not as strong as in Wertelet which were found by the Superior Court not to support a charge of aggravated assault against a police officer under Section 2702(a)(3), which charge contains the same elements of conduct as simple assault under Section 2701(a)(1).1° The facts, in a light most favorable to the Commonwealth, are clearly distinguishable from those in Petaccio and Marti. Accordingly, there is no prima facie case of the two counts of simple assault against defendant which we will dismiss. Based on the foregoing, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2002, the petition of defendant for a writ 10 See also, Commonwealth v. Thompson, (01-2403 Criminal, opinion filed May 28, 2002). 02-0401 CRIMINAL TERM of habeas corpus, IS GRANTED. All charges against defendant, ARE DISMISSED. By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire Assistant District Attorney Linda Hollinger, Esquire For Defendant :saa -17-