HomeMy WebLinkAboutCP-21-CR-0003274-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
:
VERNON LEE SINGER : CP-21-CRIMINAL 3274 – 2013
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., November , 2014
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On May 14, 2014 a jury found the defendant guilty of resisting arrest and not guilty of
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disorderly conduct. We found him guilty of the summary offense of public drunkenness. On
July 1, 2014 we sentenced him to a period of probation on the resisting arrest charge and to
pay the costs of prosecution on the public drunkenness charge. Defendant has filed the instant
appeal in which he questions the sufficiency of the evidence. Specifically he contends that
“there was no lawful underlying arrest to support the Resisting Arrest Charge and the
uncontroverted testimony established that none of Defendant’s acts occurred in a public
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place.” We disagree.
FACTUAL BACKGROUND
We will start by reviewing the facts in the light most favorable to the Commonwealth as
the verdict winner. Commonwealth v. Lowry, 55 A.3d 743 (Pa. Super. 2012). About 1:00 a.m.
on the morning of August 23, 2013 Pennsylvania State Troopers Rudy and Wardrop were
dispatched to a residence in South Hampton Township, Cumberland County, Pennsylvania for a
1
18 Pa. C.S.A. § 5104.
2
18 Pa. C.S.A. § 5503.
3
18 Pa. C.S.A. § 5505.
4
Concise Statement of Errors Complained of on Appeal.
domestic disturbance. They were advised that the defendant was intoxicated and verbally
abusive toward his family.
When the troopers arrived the defendant was no longer at the residence. His family
was concerned that he might try to harm himself. Consequently the troopers and family
members began to search the area. While the area is wooded and rural, there are other
residences scattered around. The nearest residence is within shouting distance.
After about an hour of searching the area without results, the troopers gave up and left.
Shortly after leaving they received another call from the family. This time they were told that
the defendant was banging on a window, holding a hatchet/axe and threatening to kill himself.
Troopers Wardrop and Rudy returned to the scene along with their corporal, Chester
Dabrowski. Shortly thereafter two other troopers joined them.
Before the troopers arrived the defendant fled back into the woods. Trooper Wardrop
called him on his cell phone as Corporal Dabrowski and Trooper Rudy canvassed the area. The
defendant told Trooper Wardrop that he intended to kill himself. The two other officers were
able to locate the defendant by the light from his cell phone. However, when they got close to
him he put the hatchet to his throat, telling the troopers not to come any closer. As they yelled
at him to drop the axe, he took off through the woods and into a cornfield.
The troopers split up to search for the defendant. Trooper Rudy entered the cornfield
with one of the defendant’s nephews, hoping to find his trail by following corn that had been
knocked down. Trooper Rudy noticed the odor of alcohol just as the defendant jumped up
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startling the trooper and his nephew. The defendant again disappeared into the corn field with
hatchet in hand.
After searching for an hour and twenty minutes the Corporal decided to wait until
daylight so that a helicopter could be used to assist them. The five troopers and various family
members regrouped back at the residence. At that point someone spotted the defendant in
the yard of a neighboring residence. As the troopers got near to him he lifted the hatchet to his
neck yet again. Four of the five troopers were forced to tase him with no apparent effect. They
then had to tackle him in order to get him into custody.
Once he was in custody it was apparent that he was intoxicated. He reeked of alcohol
and his eyes were bloodshot and glassy. Furthermore, he had a B.A.C. of 0.075% several hours
after he had stopped drinking. He was taken to crisis intervention and eventually committed to
a psychiatric facility for treatment. The instant charges were filed several weeks later on
November 1, 2013.
DISCUSSION
Resisting Arrest
Section 5104 of the crimes code provides as follows:
Resisting arrest or other law enforcement
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,
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or employs means justifying or requiring substantial force to overcome the residence.
The crime is committed not only by resisting an arrest but also by resisting the discharge of
“any other duty.” See Commonwealth v. Karl, 476 A.2d 908 (Pa. Super 1984).
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18 Pa. C.S.A. § 5104.
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The underlying arrest must be lawful to support a charge of resisting arrest.
Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (Pa. 1995). However, there are “a host of
circumstances in which public servants discharge legal duties other than arrest.”
Commonwealth v. Karl, supra, at 911 (emphasis in original). The physical obstruction of the
discharge of those duties is also prohibited by this section. In this case the defendant resisted
not only a lawful arrest but also the troopers’ attempt to discharge their legal duty to prevent
his suicide.
Corporal Dabrowski was asked to explain to the jury why they were attempting to take
the defendant into custody. He explained their reasons in the following exchange with the
Assistant District Attorney:
Q. The elements of resisting arrest set forth that with the intent of preventing a
public servant from affecting a lawful arrest, so I’m sure the jury might have a
question when they would have to deliberate at some point, what were you
going to be arresting Mr. Singer for?
A. At that point it was disorderly conduct and once we found he was intoxicated,
public drunkenness.
Q. Or discharging any other duty. What else were you trying to do besides arrest
him and take him into custody?
A. Well, part of our issue was he had threatened to kill himself, so we wanted to
get him crisis.
Q. So you’re trying to save his life?
A. Save his life, yes.
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(emphasis added).
6
Transcript of Proceedings, May 12, 2014, p. 38.
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Defendant contends that his arrest was unlawful. He argues that because “the
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uncontroverted testimony established that none of (his) acts occurred in a public place,” he
could not be arrested for either disorderly conduct or public drunkenness. We disagree with
his characterization of the evidence.
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Among the places considered to be public are “highways” and “any neighborhood.”
Corporal Dabrowski described the area where these events took place:
. . . (W)e walked probably 150 yards from the trailer, and there was a small wooded
area. There are actually a couple other residences scattered or cabins or something
scattered throughout there. As we’re walking towards this cornfield, there’s an open
area and there’s a road and then there’s a tree line. On the other side of the tree line is
a big cornfield.
We could hear - - myself and Trooper Rudy could hear talking, so we killed our
flashlights and started walking toward the sound of the voice and we realized it was Mr.
Singer talking to Trooper Wardrop.
Q. Keep going.
A. So then we - - I think we both gave him verbal commands to come out of the
wood line. You know, drop the hatchet. At that point he picked the hatchet up, told us
to stay away, and then he ran into - - you could hear him running through the brush.
. . .
You could hear him running, and we realized the other side was cornfield, and the corn
at that time was probably seven feet high.
So then I tried - - we decided to - - I decided I would flank the hedge row in case he
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came back out.
The above testimony made it clear that defendant’s conduct occurred in a neighborhood with a
road.
7
Concise Statement of Errors Complained of on Appeal.
8
18 Pa. C.S.A. § 5503 (c).
9
Transcript of Proceedings, May 12, 2014, pp. 35, 36.
5
While the area may have been rural, and the residences few, it was still a neighborhood.
See Commonwealth v. O’Brien, 939 A.2d 912 (Pa. Super 2007). The search for and chase of the
defendant took place in a neighborhood, through the yards and the cornfields of his neighbors
as well as over a road to which the public had access. There is no doubt that his actions
occurred in a public place.
Even without a lawful arrest, the conviction is supported by the defendant’s resistance
to the troopers’ attempt to keep him from killing himself. As the Commonwealth Court has
acknowledged, “(T)he preservation of human life is of great interest to the state.” Department
of Public Welfare, v. Kallinger, 580 A.2d 887, 891 (Pa. Commonwealth 1990). The Kallinger
Court went on to quote with approval the following language from Commonwealth v. Root, 191
Pa.Super. 238, 244, 156 A.2d 895, 900 (1959), revd. on other grds. 403 Pa. 571, 170 A.2d 310
(1961): “\[t\]he policy of the law is to protect human life, even the life of a person who wishes to
destroy his own.” Id.
The troopers had a legal duty to prevent the defendant from killing himself and to take
him for appropriate mental health treatment. Defendant’s action in resisting their discharge of
that duty was a violation of the statute.
Public Drunkenness
Section 5505 of the Crimes Code provides in relevant part as follows:
A person is guilty of a summary offense if he appears in any public place
manifestly under the influence of alcohol . . . to the degree that he may endanger
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himself or other persons or property, or annoy persons in his vicinity.
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18 Pa. C.S.A. § 5505.
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The evidence that the defendant was in a public place was discussed above. It is clear that he
posed a danger to himself (holding an axe to his throat) as well as to the Troopers and family
members trying to help him. Furthermore, there is no question but that he was “obviously
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intoxicated.”
_______________________ _______________________________
DATE Edward E. Guido, J.
JONATHAN R. BIRBECK, ESQUIRE
For the Commonwealth
F. CLAY MERRIS, IV, ESQUIRE
For the Defendant
:sld
11
Transcript of Proceedings, p. 40.
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