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HomeMy WebLinkAbout99-1403 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · vs · 99-1403 CRIMINAL · CHARGE: 1) DISORDERLY CONDUCT · 2) AGGRAVATED HARASSMENT BY · PRISONER · 3) RESISTING ARREST OR OTHER · LAW ENFORCEMENT ANTHONY F. CLARK · AFFIANT: PTL. KEVIN ROLAND OTN' L03 8230-3 IN RE: OPINION PURSUANT TO RULE 1925 On October 18, 1999, following trial without a jury, the defendant was convicted of disorderly conduct, aggravated harassment by prisoner, and resisting arrest. The charges arose out of an incident that occurred on Friday, June 18, 1999, at approximately 2:00 o'clock in the lnorning. The Carlisle Police responded to a fight in front of the Carlisle Tavern on South Hanover Street, just south of the Courthouse. The defendant was first observed in a crosswalk. He then approached Officer Kevin Roland at which time he was screaming profanity. When Officer Roland attempted to arrest the defendant for disorderly conduct, the defendant avoided arrest by walking backwards and walking in circles. From time to time, the defendant would assume a fighting stance. The officer then sprayed the defendant with pepper spray in an effort to subdue him. The defendant then began running down South Hanover Street in the travel lanes of the roadway. The officer ran after the defendant until Mr. Clark slipped on the wet roadway and fell down. The officer then turned the defendant over onto his stomach and handcuffed him. Mr. Clark was then taken to the Carlisle Borough Police Station. Once inside the station, he began kicking his legs into the air. He was eventually removed to the cellblock where he was to be detained. He was patted down and placed in a cell. In the meantime, he had begun to spit. The cell door was pushed closed and locked whereupon 99-1403 CRIMINAL the defendant again spat in the direction of tl~e police ~,fficers, striking Officer Jeffrey Kurtz with saliva. The charge of aggravated harassment by prisoner is described in Section 2703.1 of the Crimes Code as follows' 2703.1. Aggravated harassment by prisoner A person ~vho is confined in or committed to any local or county detention facility, jail or prison or any State penal or correctional facility located in this Commonwealth commits a felony of the third degree if he, xvhile so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed, intentionally or knowingly causes or attempts to cause another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material. In his statement of matters complained of on appeal, the defendant contends that the cellblock at the Carlisle Police Station is not a local or county detention facility and therefore a critical element of the charge is missing in this case. We know of no other Pennsylvania court decision which has grappled with this issue. Nonetheless, we have no difficulty in reaching the conclusion that a holding cell at a police station is a "local detention facility." The provisions of the Crimes Code are construed according to the fair import of their terms but "when the language is susceptible of differing constructions, it should be interpreted to further the general purposes [of the Crimes Code] and the special purposes of the particular provision involved." 18 Pa.C.S.A. 105. Section 2703.1 describes conduct which might occur in a jail or prison or state penal institution. It also provides for culpability, hoxvever, in a "detention facility." If the phrase "detention facility" meant nothing more than a prison, there would have been no need to include it. Clearly, a detention facility includes something other than a county 2 99-1403 CRIMINAL or state prison. In fact, if a police lock-up is not a detention facility, we are at a loss to know what else it could be. Moreover, we can think of no reason to differentiate between a prisoner who is awaiting a preliminary hearing in a county jail and one who is awaiting arraignment in a police lock-up. An inspection of the surrounding provisions of the Crimes Code is also helpful. In Section 2703, Assault by prisoner, the Crimes Code delineates the same sort of detention facilities as are outlined in 2703.1. This reflects, however, the 1998 amendment rewriting the section which formerly applied only to "a person who has been found guilty and is awaiting sentence to imprisonment, or a person who has been sentenced to imprisonment for a term of years .... "This evidences a clear legislative intent that crimes involving assaults by prisoners be extended to include persons who have been confined for any purpose. On the other hand, the section dealing with assault by life prisoner, 18 P.S. 2704, applies only to a person "who has been sentenced to death or life imprisonment in any penal institution located in this Commonwealth, and whose sentence has not been commuted .... "18 P.S. 2704. Thus, the legislature has been careful to extend or, where appropriate, delimit the circumstances of detention as they apply to these various offenses. With respect to the resisting arrest charge, the defendant contends that the Commonwealth has failed to establish that, in attempting to prevent his arrest by Officer Roland, he employed "means justifying or requiring substantial force to overcome the resistance." 18 P.S. 5104. In this case, the defendant resisted attempts at his arrest by pulling his hands away from the police officer, assuming threatening stances, and dancing about in the street. The officer was called upon to use pepper spray which is an extreme irritant causing, among other things, temporary blindness. The officer chased the defendant who fell down in from of a police 99-1403 CRIMINAI~ vehicle respond i~, ,,.= to the scene. The officer had to roll over the defendant in order to handcuff The courts have not established a bright line with respect to the conduct of defendants which justify or require "substantial force" in response. In Commonwealth v. Rainey, 285 Pa. Super. 75,426 A.2d 1148 (1981), the defendant, when escorted to a police vehicle, attempted to run away. He was pursued and when caught began to shake himself violently and to wriggle and squirm in an attempt to free himself from the officer's grasp. A police corporal arrived on the scene and struck the defendant on the head with his nightstick. Notwithstanding, the defendant continued to struggle. One of the police officers then grabbed the defendant by the throat and choked him. While choking the defendant, the police officer struck his knee against the curb. Eventually, it took three police officers to subdue the defendant. The Superior Court held that the Commonwealth had not established an act of resisting arrest. Appellant's actions in attempting to escape were no more than efforts "to shake off the policeman's detaining arm." Appellant neither struck, nor struck out at the arresting officers, nor did he kick or push them. At most, this was a "minor scuffle" incident to an arrest. Three years later, in the case of Commonwealth v. Miller, 327 Pa. Super. 154, 475 A.2d 145 (1984), the Superior Court appeared not to follow the decision in Rainey. In the Miller case, the defendant was told that he would be cited for disorderly conduct. When the police officer attempted to arrest him by taking hold of his arms, the defendant struggled by flailing his arms and by moving the upper part of his body "horizontally back and forth in a rapid manner." Id. at 147. Again, when the police officers attempted to put handcuffs on the defendant, he resisted their efforts by straining against them with his arms and upper part of his body. He continued to struggle as the police officers placed him in the rear of the patrol car. In order to accomplish 99-1403 CRIMINAL this, the police found it necessary to lift the defendant from the ground and physically push him into the rear of the police vehicle. As a result of this struggle, one o't' the Y'ol:,ce~'~'.,:.n received a bruise on his lower right leg. Miller was charged with a violation of the same provision of the resisting arrest law as the instant defendant. The Superior Court found that the actions of the defendant required of the police substantial force to overcome resistance. In a footnote in the Miller case, the court said: There is dictum in several prior decisions of this Court from which it can be inferred that we deem it an essential element of the crime of resisting arrest that the actor strike or kick the arresting officer. See: Commonwealth v. Eberhardt, 304 Pa. Super. 222, 450 A.2d 651 (1982) (Wieand, J. dissenting); Commonwealth v. Rainey, 285 Pa. Super. 75, 426 A.2d 1148 (1981) (Watkins, J. dissenting). Such an interpretation of the statute is contrary to the express language thereof. We decline to follow that dictum in the instant case. In the matter sub judice, the officer attempted in vain to overcome the varied methods by which the defendant thwarted being handcuffed. In the end, the officer was forced to use pepper spray. Even then, the defendant fled from the police and was not captured until, surrounded by police officers, he slipped on the wet pavement. While it is by no means the most serious case of resisting arrest that we have seen, we are satisfied, nonetheless, that the conduct of the defendant rose to the level necessary to support a conviction. January tO" ,2000 Ke~: Hess, J. 99-1403 CRIMINAL Jaime Keating, Esquire Chief Deputy District Attorney William Braught, Esquire Assistant Public Defender 'rlm