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HomeMy WebLinkAboutCP-21-CR-0343-2003COMMONWEALTH VS. RONALD JAMES MILEY II OTN: L145111-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-0343-2003 CHARGES: (1) RESISTING ARREST OR OTHER LAW ENFORCEMENT AFFIANT: TPR.. GREGORY STYERS IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was convicted, following a jury trial, of a count of resisting arrest. He was sentenced on June 3, 2003, to a term of not less than thirty (30) days nor more than twelve (12) months in the Cumberland County Prison. He filed a post-sentence motion in the nature of a motion for judgment of acquittal. The motion was denied on October 29, 2003. The defendant has since appealed on one issue: namely, that the evidence was insufficient to sustain the conviction. The charges stem out of an incident that occurred on January 28, 2003, when three members of the Pennsylvania State Police went to the residence at 7 Pine Road, South Middleton Township, Cumberland County. Trooper Styers, Trooper Ott, and Cpl. Leydig went to the residence to serve an arrest warrant for the defendant. When they approached the apartment, they looked in a window and saw the defendant. When they knocked on the door and announced their purpose, the defendant hurriedly left the room and went upstairs. Once inside the residence, Trooper Styers and Cpl. Leydig went up the stairs calling for Mr. Miley. Both officers had their weapons drawn. Inasmuch as it was 11:00 p.m. and there was no lighting on the second floor, both officers were using flashlights. Upon reaching the second floor, Trooper Styers and Cpl. Leidigh found themselves in a hallway which was several feet wide and approximately twenty feet long. They continued to call for the defendant. Eventually Mr. Miley appeared in the CP-21-CR-0343-2003 hallway looking agitated. The officers repeatedly commanded the defendant to show them his hands as they did not know if he had a weapon. At first, the defendant put his hands in his pockets. He eventually showed his hands but never put them up despite numerous requests. The officers then ordered the defendant to the ground but he did not comply. What then ensued was described in the brief of the Commonwealth as follows. Tpr. Styers forced the defendant to the ground by grabbing the defendant's shoulder. (N.T. 34) The defendant went face first to the ground. (N.T. 35) After reaching the ground, the defendant tried to get up. (N.T. 65) Once the defendant was on the ground, Tpr. Styers jumped on top of the defendant's left side below the shoulder blade. (N.T. 35) As soon as the defendant went to the round, he put his hands under the center of his body. (N.T. 35) The officers still did not know if the defendant had a weapon. (N.T. 35) Cpl. Leydig then pushed his knee onto the defendant's buttocks and lower leg area in order to flatten the defendant out. (N.T. 65) The officers commanded the defendant constantly to put his hands behind his back. (N.T. 36) Instead the defendant yelled false accusation that the police were beating him and flailed about. (N.T. 36, 65). During the struggle, Tpr. Styers would reach for one of the defendant's hands to place a handcuff on it and the defendant would roll towards that side so the officer could not seize his arm. (N.T. 37) Eventually, Tpr. Styers got one of the defendant's arms back by grabbing the defendant's arm with both hands and pulling at it. (N.T 37) Both Tpr. Styers and Cpl. Leydig used both of their arms to retrieve the defendant's other arm. (N.T. 38) Meanwhile the defendant was thrashing his face against the carpet and banging his head onto the floor. (N.T. 37). The struggle on the floor lasted two to five minutes. (N.T. 57, 69) All three officers were involved in the struggle for approximately two 2 CP-21-CR-0343-2003 minutes. (N.T. 69) Tpr. Styers is 5 foot 8 inches tall and weighs approximately 210 lbs. (N.T. 39) Tpr. Ott is taller than Tpr. Styers. (N.T. 39) Cpl. Leydig is 6 foot 1 inch tall and weighs approximately 240 lbs. During the struggle on the floor the defendant was pumped and flexing his muscles. (N.T. 70) Once handcuffed, the police brought him downstairs and radioed for the midnight sshift to transport him away from the scene. (N.T. 14-15). The defendant was convicted of Resisting Arrest. The elements of this offense are as follows: 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. A question is presented in this case as to whether the state police were required to use substantial force to overcome the resistance of the defendant. For the proposition that the evidence is insufficient in this case, the defendant cites Com. v. Rainey, 426 A.2d 1148 (Pa. Super. 1981). There, the defendant, who was intoxicated, entered a residence without permission. The police arrived and placed Rainey under arrest for trespass. The defendant attempted to leave but was restrained by a police officer's grip on his neck and belt. He was then escorted by police to a waiting police van at which point the defendant attempted to run away. Upon being grabbed by the police, the defendant began to shake himself violently and to "wiggle and squirm" in an attempt to free himself. The defendant continued this conduct even after having been struck on the head with a night stick. The officer then grabbed the defendant by the throat. In the course of the struggle one of the police officers struck his 3 CP-21-CR-0343-2003 knee against the curb causing a slight injury. The Superior Court described the incident as a "minor scuffle," (Id. at 1150) and went on to conclude that the evidence was insufficient to convict the defendant of resisting arrest. The Superior Court placed great emphasis on the fact that Rainey did not strike or attempt to strike any of the arresting officers nor did he kick or push them. The holding in Rainey appears to have been contradicted in the case of Com. v. Miller, 475 A.2d 145 (Pa. Super. 1984). In Miller, the defendant struggled with two police officers who were attempting to grab his arms. He flailed his arms and moved his upper body horizontally back and forth. When the officers attempted to place handcuffs on the appellant, he resisted by straining against them with his arms and upper body. The defendant continued to struggle when the officers went to place him in the patrol car and one of the officers received a bruise on his lower right leg as a result. The court in Miller made no reference to the Rainey case but, instead, based on facts which were quite similar, had no difficulty in reaching the conclusion that the defendant had resisted the police by means which required substantial force to overcome the resistance. Interestingly, in the Miller case, the court stated that it was not necessary for a conviction for resisting arrest that the defendant strike or kick the officer. It is also difficult, if not impossible, to reconcile the holding in Com. v. Clark, 761 A.2d 190 (Pa. Super. 2000) with the Rainey case. In Clark, the defendant, when told that he was under arrest, assumed a fighting stance. When the arresting officer tried to reach for the defendant's hands so he could place the appellant in handcuffs, Clark pulled his hand away from the officer and put his hands back in a fighting stance. The officers then pepper sprayed the appellant. Clark then ran down Hanover Street, in Carlisle, where he then fell. Three officers struggled with the appellant on the ground. The officer had to roll the defendant over before they could 4 CP-21-CR-0343-2003 handcuff him. In Clark, the Superior Court had no difficulty in concluding that the appellant employed "... means justifying or requiring substantial force to overcome the resistance." Clark at 193. Again, the Superior Court made no mention of the Rainey case. Superior Court cases more recent in time than Rainey make no mention of a requirement that the defendant strike or kick the arresting officer before the defendant can be convicted of resisting arrest. Accordingly, we will refrain from grafting onto the statute any such requirement. The jury in the matter sub judice was expressly told that they could not convict the defendant if they found that he "merely tried to run away from the police or scuffled with the police or argued with the police." (N.T. 92) Instead, they, the jury, had to be satisfied that substantial force was necessary to overcome the resistance of the defendant. The jury so found and, based on our analysis of the case law, we cannot say that the evidence was insufficient to sustain the conviction. Whether the court may have reached a different verdict based on the same evidence is, of course, not the issue. January ,2004 Jaime Keating, Esquire Chief Deputy District Attorney William Braught, Esquire Assistant Public Defender :rlm Kevin A. Hess, J.