*1 655 A.2d PENNSYLVANIA, Appellee, COMMONWEALTH OF
v. BIAGINI, Appellant. Bruce Pennsylvania, Appellant, COMMONWEALTH of
v. (In of), Appellee. BARRY Interest Pennsylvania. Supreme Court of Argued Sept. 1994. Decided Jan. 1995. *3 Glass, Weaver, Weaver, David J. Johns- L. Edward Glass & town, at No. 6. appellant for Gross, Atty., Dist. Norman Asst. Eisenberg, Deputy
Ronald Atty., Dist. for at No. 3. appellant Christin, Jr., Atty., Wayne Gongaware, B. Asst. Dist. Jack for at No. 6. appellee for at No. 3. Scarpa, Philadelphia, appellee C.
Steven NIX, C.J., FLAHERTY, ZAPPALA, Before PAPADAKOS, CAPPY, MONTEMURO, JJ. CASTILLE THE
OPINION OF COURT CAPPY, Justice. were consolidated for review this appeals
These two rendered inconsistent decisions. Superior as the Court Court question addressed Superior In Court each case arrest resisting for can be convicted an individual whether underlying arrest that the determined subsequently when it is In unlawful, cause. supported by probable it was not as conviction for resist- affirmed the Court Superior reversed the Superior Court and in ing for arrest. conviction for conviction defendant asserts his
Additionally, each occurred while cannot stand as assaults aggravated assault illegal from an arrest. defending themselves justifiably rely upon the second issue the defendants support French, v. Commonwealth decision of this Court recent (1992).1 42, 611 Pa. A.2d follow, a convic- Court holds that the reasons that this For underlying arrest cannot stand where tion for hold that French to be unlawful. We further is found to resist what right create a for an individual did not s/he no right arrest. There is resist to be an unlawful believes arrest.
BIAGINI overruled the trial In the case the as it was not the arrest was unlawful court and held However, it went on to hold that cause. upon probable based irrelevant to the conviction legality of the arrest was thus, conviction. The rele- resisting arrest and affirmed the vant facts are as follows. on in a residential Snyder, patrol while a routine a.m., in North Belle Vernon at 3:00 heard
neighborhood disturbance, shouting, a loud voice seemed disturbance. *4 Upon investigating, the rear of a home. to emanate from alley out of the between the Biagini stagger observed street, houses, back into the stagger look and down the and up encountered alley down the and alley. The officer drove Biagini resolving found no merit to the defen- 1. The Court in raised, argument, although was argument. The French dant’s French Superior Court in not addressed unidentified of his house with an Biagini yard the rear Biagini The officer as to the disturbance. inquired female. voice, there no in a loud that was Biagini initially responded, individuals across the pointed and then at two other problem he was and Biagini The officer told to remain where alley. however, investigate Biagini, went to the other individuals. into his home. The other individuals yard left the and went at them Snyder Biagini screaming that had been told Officer yard object they from his back and threw an at them which bottle. thought, impact, glass from the sounds of the to be Biagini. The officer returned to speak Biagini alley, approached As had left the the officer Biagini responded by house and knocked on the door. tearing down screaming [expletive] at the officer “Who to come out to the my Snyder Biagini door?” Officer asked refused and in questions. Biagini car and answer a few patrol off his The officer vulgar porch. terms ordered the officer public he was under arrest for intoxication Biagini then told comply conduct. refused to with the disorderly Biagini and shook free of the request quietly. Biagini officer’s to come home. officer’s hold and re-entered his car, to his turned on his Snyder patrol went back again called for and knocked on flashing lights, back-up, Snyder request Biag- door. Officer renewed his Biagini’s ini him renewed his accompany patrol Biagini to the car and a attempted Biagini refusal. The officer to seize vulgar punched scuffle ensued. Officer was the mouth and Biagini was subdued with the aid of the additional officers who back-up Biagini had call. was searched and responded marijuana were a set of brass knuckles and a small amount person. found on his arguing
At trial demurred to the evidence all illegal. must be dismissed as the arrest was charges subsequently trial court denied the demurrer. convicted, trial, drunkenness, disor- non-jury public after a assault, conduct, derly prohibited of a of mari- weapons, possession offensive small amount juana. *5 denying Biagini’s post-trial court
In the of the trial opinion arrest was valid: court concluded that motions the evidence, it is plain considering all of the credible But after initially arrested the defendant was to this Court that a result of the disorderly conduct as public drunkenness officer. The of the presence conduct defendant’s residence, his porch on the of the defendant behavior officer, officer was toward the while the which was directed public into a disturbance conducting investigation his attention, justify sufficient to his his caught had earlier apprehension. immediate facts, Court, the same set of reviewing as to the legal trial conclusion
determined that court’s in error. That Court concluded: validity of the arrest was intemperate, may conduct have been Though Biagini’s unreasonable, to conclude unjustified, or here we are unable inconvenience, annoyance or any public created alarm, a risk thereof. 18 Pa.C.S. recklessly or created 5503.[2] committed; no refer § crime had been No violent neighbors uninvolved any inquisitive, a crowd or ence to [exple in the record. screamed “Who appears door, tearing my answering is down door?” while tive] and loud Snyder. Being vulgar knew it was both before he § Disorderly 2. 18 Conduct: Pa.C.S. (a) person guilty disorderly conduct if Offense defined.—A with inconvenience, alarm, public annoyance recklessly or intent to cause or thereof, creating a risk he: (1) fighting threatening, violent or tumultuous engages in or or in behavior; noise; (2) unreasonable makes (3) gesture; language, or act uses obscene or makes an obscene legitimate purpose of the actor. which serves no (b) Grading. offense under this section is a misdemeanor —An degree actor is to cause substantial harm or third if the intent of the inconvenience, disorderly persists in conduct after or if he serious disorderly warning request to desist. Otherwise conduct reasonable or summary offense. Definition, (c) “public” means in this section the word —As used public likely persons place which the or a affecting to affect in a or access; highways, places group among the included are substantial has houses, schools, facilities, places of
transport prisons, apartment busi- amusement, any premises open any neighborhood, which are or ness public. residence, officer, not private
to a
while
does
conduct,
What
disorderly
[citation omitted].
constitute
intoxicated,
in his
emerges
Biagini,
allegedly
is that
while
vulgar
telling
home and on his
was loud and
porch
cooperate
he did not want
with the officer’s
*6
This incident
lacks “the indicia of disorder
investigation.
very type
spark
characteristic of confrontations with ‘the
of
extinguish
so
seeks to
before it becomes
plainly
statute
Beattie,
[Commonwealth v.]
Pa.Super.
[411
177]
flame’.”
at
187,
601 A.2d
[297]
at 302. Since the factual
findings
do
conclusion,
the trial court’s
we are con-
support
legal
not
Snyder
that
did not have probable
strained to conclude
disorderly
for
conduct.
Biagini
cause
had
Snyder
probable
are also unable to conclude that
We
drunkenness.
Biagini
public
cause to arrest
While
allegedly intoxicated in his home and on his
Biagini was
it
from the record that he had not
porch,
apparent
is
influ
public place
any
manifestly
in
under the
“appeared
he
degree
[might] endanger
ence of alcohol to the
that
in
persons
property,
annoy persons
himself or other
or
or
5505[3]
§
vicinity.”
(emphasis supplied).
his
18 Pa.C.S.
634,
Biagini,
Commonwealth v.
Although Superior agreed Court with that Offi- him, cer had no cause to arrest the Court probable of the regardless legality went on to reason stand, had resisting the conviction for arrest must as in “performance duty.” no to resist the officer right [his] 2702(a)(3).4 § quoting Pa.C.S. §
3. 18 5505: Public Pa.C.S. drunkenness person guilty summary appears any public A of a offense if he degree place manifestly under the influence of alcohol to the that he may endanger persons property, annoy persons himself or other or or vicinity. in his 2702(a)(3), § Aggravated is a section of the Assault statute 4. 18 Pa.C.S. provides: which (a) person guilty aggravated if he: Offense defined. —A assault (3) intentionally knowingly bodily attempts cause or or causes officer, injury police firefighter county probation to a adult or
BARRY W. W. In the reversed the matter conviction for arrest on the basis that the arrest was unlawful as it occurred the absence of cause. The finding trial adjudicated Barry delinquent upon court had W. assault, him guilty simple assault and arrest based upon following facts.
At on approximately p.m. evening August 10:00 on Ashby, patrol, Officer while routine received radio report of “a selling male narcotics at 61st Street and Lans- car, uniform, downe.” Ashby Officer a marked drove to the location within minutes of the call. The receiving officer observed two It standing ledge. black males under a was a dark As night raining Ashby it was hard. Officer vehicle, exited the two began men to run.
yelled “stop police” gave Ashby chase. Officer testified threw an object to the other male that drugs. believed be The officer was unable to *7 object, describe the none of any- the other officers observed thrown, thing being although and both males were immediate- ly apprehended, no or other drugs contraband were discover- ed. males, as Ashby began
Just Officer to chase the two another police car arrived to Boran from the other assist. Officer joined vehicle Officer Ashby chasing subsequently W., subduing Barry struggle In the with Officer Barry W. As parked Boran’s hand was cut on the mirror of a car. a Barry result of this found guilty simple incident W. was assault, aggravated resisting adjudicat- assault and arrest and ed delinquent. opinion upon of the trial court focuses the elements of specifically legality
assault and fails to
address the
of the
arrest; however,
underlying
opinion clearly
the trial court
legality
underlying
appeal
assumes the
of the
arrest. The
had
officer,
parole
county juvenile probation
parole
agent
officer or an
Pennsylvania
perfor-
of the
Board of Probation and Parole in the
duty;
mance of
Court
panel
Superior
reviewed
a
originally been
resisting
to
decision as
the
reversed the trial court
which
granted and the
charge. Reargument en banc was
arrest
dissent-
judges
reaffirmed with two
original panel decision was
as
issue.
only
to the
arrest
ing
surround-
totality
the
of the circumstances
reviewing
After
W., the
Court concluded that
Superior
the arrest of
ing
arrest, but
lacked
cause to
Ashby
only
not
justify
necessary
suspicion
also lacked sufficient reasonable
Ashby
for Officer
Terry stop.5
approach
a
The basis
male
“investigate
provided
was a radio bulletin which
W.
at_[location].”
anony-
was an
selling drugs
The bulletin
descrip-
There
no
tip
reliability.
with no indicia of
was
mous
the source
regarding
tion of the male and no information
at the
two
arrived
location
tip.
Ashby
the
When Officer
fled
cor-
any
before
happened
present
individuals who
be
could be
roborating
anonymous tip
as to the initial
information
fled, Barry
that as he
Ashby testified
ascertained. Officer
not
companion.
an
to his
The officer could
object
threw
all,
a
the
object
yet
at
he asserts
belief
describe
Looking
at the facts
object was
controlled substance.
Commonwealth, the
Court
most
light
Superior
favorable
descriptive
which lacked
anonymous tip,
that this
ascertained
reliability,
any
together
information and
indication of
taken
flight
pouring
mysterious
object,
with the
thrown
into
rain,
specific
did
articulable
satisfy
requirement
still
not
belief that criminal
necessary
facts
to establish
reasonable
vacated
activity
Accordingly,
afoot.6
conviction
arrest was
underlying
as
assault.
unlawful and affirmed
conviction
Ohio,
(1968),
Terry
U.S.
88 S.Ct.
DISCUSSION resisting Both and W. were convicted argument and assault.7 aggravated arrest The defendants’ position resisting of their the convictions on support forth in aggravated arrest and assault must be reversed is set resisting the form: as the crime of arrest following syllogistic unlawful, underlying cannot be sustained where the arrest is stand; resisting their convictions for arrest cannot and since underlying justified arrest was unlawful were they therefore, resisting the their resistance physically police; as justified was it cannot become the basis for their convictions syllogism, although facially ap- for assault. This pealing, fatally appeal argument flawed. The of this lies however, first for validity premise; within the hereinafter, thoroughly secondary reasons more set forth thus, the conclusion premise are invalid. begin by examining must our discussion of these cases
We charges brought against Biagini arrest heart of argument W. The the defendants’ sustained, cannot as an charge legally be offense, cannot essential element lawful be essence, the Commonwealth. the defendants proven by sufficiency contest the evidence. The time honored reviewing standard for a claim of of the evidence insufficiency Burton, was well stated in Commonwealth v. 532, 534, 450 Pa. (1973): 301 A.2d if repeatedly determining
As we have said the test is, evidence is sufficient to sustain a criminal conviction accepting whether as true all of the evidence of the Com- therefrom, monwealth, arising and all reasonable inferences verdict, jury which the could have reached its upon properly it in law to doubt prove beyond was sufficient a reasonable appellant guilty that the of the crime of which he stands convicted. purpose opinion necessary to address
7. For the of this we do not find it charges against Biagini. the additional levied *9 32 the applying arrest. resisting is
The crime at issue at the we first look cases at issue to the above standard the Crimes as forth within arrest set resisting of elements § 5104: at 18 Pa.C.S. Code if, degree second of the commits a misdemeanor person
A effecting servant from public a preventing intent of with the the duty, person other arrest discharging any or lawful injury public bodily risk of a substantial creates justifying or else, means employs or anyone or servant resistance, the force to overcome substantial requiring (emphasis supplied). under consideration bar, element only at the
In the cases
of the statute is
language
of the arrest. The
the lawfulness
to be convicted
order
unambiguous;
clear and
quite
See,
arrest
must
lawful.
be
underlying
the
resisting
(1984).
Karl,
97,
At their the defendants point this act physical to the for their of attempting responsibility shift initiating encoun resistance to officers themselves for the of resistance.8 Con physical ter which act precipitated defendants, of an finding trary assertion of and justify unlawful does not the actions arrest in and Officer physically The that a an police placed Boran. determination legal without cause is a individual under arrest courtroom, in not determination; issue to a it is an be resolved society a to a street Within civilized rules exist on corner. orderly Physical in an manner. disputes peaceful resolve to only counter-productive to officer is not police resistance a of but it is also orderly controversy, specifically resolution 505(b)(l)(i). (The § 18 use prohibited statute. Pa.C.S. not to resist an arrest which the actor justifiable force is officer, although is being by peace knows is made the arrest unlawful). Therefore, secondary premise, that an defendants’ resistance, justifies physical is unlawful arrest invalid. invalid, in syllogism As the this secondary premise The conclusion therefrom also invalid. defendants flowing us to the initial actions of the officers upon want focus The catalyst for all that flowed therefrom. defendants as arrest,” initial encounter was an “unlawful argue since the consequence of that charges which arose as a all the criminal However, stated, as the defen- should be dismissed. arrest in resisting an unlawful justified physically dants were not layman’s me I never in terms: "if the officer hadn’t tried 8. Put would have hit him.” 34 Therefore, they consequences cannot avoid the
arrest. the officers. resisting/assaulting their actions defendants make two setting forth their conclusion the First, the lawfulness of the arrest is irrelevant fatal errors. assault; second, asserting charge aggravated justified responses assaults at issue were physical that the our misinterpreted defendants have illegal an French, Pa. recent decision Commonwealth v. (1992). A.2d 175 is, again, of the defendants’ once an part argument
The first See, sufficiency attack on the of the evidence. Commonwealth sufficiency As in of the previous v. Burton. our review charged turn to the elements of the crime argument, again we or not the has order to ascertain whether Commonwealth of proof. met its burden charges brought assault at issue were (a)(3) § at 18
under subsection statute Pa.C.S. which reads:
(a) of person guilty aggravated Offense defined. —A if assault he:
(3) intentionally knowingly to cause or or attempts officer, or bodily injury police firefighter causes to a officer, county juvenile adult or county probation parole agent Pennsylva- or officer or an of the probation parole nia Board of and Parole in the performance Probation of duty; (emphasis supplied). purposes determining person
For the narrow of whether a assault, if the an aggravated police has committed effectuate officer, and physically arrest and the arrestee resists the subsequently probable the arrest is deemed to be without cause, nevertheless, guilty aggravated the arrestee is of as- of “performance duty” sault because the officer was within the In effectuating legislature when the arrest. 1986 the amended 2702(a)(3) § the “making 18 Pa.C.S. and substituted words make the “in the attempting phrase a lawful arrest” with duty.” scope of This broadened the of performance change statute, the an intent officers when evidencing protect arrests, are subsequently those which effectuating all even inception. at their cause to have lacked determined 505(b)(l)(i). § 18 Pa.C.S. See also crime Thus, is not an element the a lawful arrest convictions for aggravated to sustain the charged. order assault, Snyder must establish that Officer the Commonwealth as a result of the bodily injury Boran and Officer suffered defendants, the were while officers intentional actions to the facts of performance duty.” Turning “in the of their bar, has met cases at we conclude that Commonwealth respective Barry burdens as to both W. its a a residen- investigating was disturbance Biagini, matter neighborhood when he encountered tial scope duty. During officer’s clearly within the investigation Biagini intentionally physi- caused course Thus, was injury Snyder. to Officer sufficient evidence cal con- justifiably which fact-finder could introduced from aggravated the crime of assault. clude committed call regarding was to a radio responding Officer Boran she at specific at a location. When arrived activity criminal stated location she observed defendant and another officer. Officer Boran being pursued by individual attempted physically appre- she joined the chase. When W., Barry intentionally Officer Boran pushed hend physical injury. car her to suffer Offi- parked causing into a her as an scope duty Boran within proper cer was Biagini, As in the case of injured. when she was from which the fact-finder produced sufficient evidence committed the crime reasonably conclude W. had could assault. *12 of the turns on their argument The final defendants’ aspect in French. The opinion of this Court’s recent interpretation absolving to use as a shield them defendants want French They that their use argue for their actions. responsibility justifiable response in an a resisting force unlawful was use in them under arrest. placing officers’ of force police to protection provides blanket arguing In addition to that French arrest, to resist an unlawful make those who defendants in claims as to 'nature and extent of the force used specific their individual cases. in
Biagini argues that Officer used excessive force arrest, thus effectuating merely responding was in protect that force an effort to himself. W. asserts first, no resis- arguments; alternative he offered real tance, injury proportion that Officer Boran’s was out of second, minor resistance on his that French was part; his published develop after trial and he was unable to suffi- revealing overwhelming cient facts his fear of the officer which explains his resistance. any clearly:
We cannot state it
more
there does not
arrest,
exist
in
Pennsylvania
right
any
resist
under
circumstances.
lawfulness
the arrest must be decided
appropriate
imposed
after the fact and
sanctions
in a later
judicial setting. Contrary
position
of the defendants
herein,
in
opinion
upon
French never touched
the issue of
arrest when the arrestee thinks the
officer is
at
in
acting
probable
without
cause. What was
issue
French
right
was the distinction between
arrest and the
self-defense which would allow an individual
to protect
in the extreme situation where the
offi
arresting
him/herself
cer uses force which is
it
so excessive that will result
death
bodily
or serious
harm.
Id.
The defendant in legality French never contested the of her Rather, arrest. she that her attack on the argued justified him stop using an effort to from excessive force in placing boyfriend her under arrest. The Court in French was using adjective referencing improper 9. “excessive” when officer, by police amount of force used we mean the amount of force bodily injury, just which would cause serious not an amount of force necessary specific that is more than to effectuate the arrest at issue. *13 resisting arrest to that fine line between attempting clarify and self-defense. justified in self is protection arrestee’s use of force
[A]n
is
reasonably
when
that such force
the arrestee
believes
arresting
an
offi-
immediately necessary to protect against
i.e.,
force,
which is
deadly
force
cer’s use
unlawful and
bodily injury.
death or serious
readily capable
causing
An
arresting
capable
officer’s use of excessive force
or
can be
causing
bodily injury
less than serious
death
by
subsequent
legal
recourse to
remedies.
vindicated
French,
Thus, French
from being accountable their conduct regardless Boran of the “law- ing and Officer is limited to ex- underlying arrest. French fulness” § 10. Use of force in law enforcement 18 Pa.C.S. 508. (a) making officer’s use of force in arrest.— Peace officer, (1) or peace any person or whom he has summoned A him, or from to to assist need not retreat desist efforts make directed or resistance to the
lawful arrest because
resistance
threatened
justified
any
in the
which he believes to be
arrest. He is
use of
force
bodily
making
while
necessary to defend himself or another from
harm
However,
justified
deadly
only
using
force
when he
the arrest.
he
bodily
necessary
prevent
serious
force is
death or
believes that such
he
both
injury
person,
such
or when
that:
to himself or
other
believes
(i)
being
necessary
prevent
defeat-
such force is
from
escape;
by
ed
resistance or
and
(ii)
attempted
person
a forc-
to be arrested has committed
attempting
escape
possesses deadly weapon,
felony or
ible
endanger
life or inflict
he will
human
or otherwise indicates that
delay.
bodily injury unless arrested without
serious
treme situations where a police
unlawfully
uses an
deadly
excessive or
amount of force in effectuating an arrest.
French we now turn to the
Having reaffirmed our
holding
cases,
final aspect of these two
whether or not excessive force
was used
Officer Snyder and Officer
Boran
arresting
*14
In the Biagini case it
argued
was
to the trial court that
the
by
force used
was
In
excessive.
particular
Biagini complained of the use of
gun
a stun
to
him
stop
while
he
wrestling
with the officer. The trial court found as a
matter of fact that the force used was only
necessary
to
effectuate the arrest. The Superior Court affirmed that factu
al conclusion and we find no abuse of discretion or error of law
which would require a different
result. Commonwealth v.
Medley, 531 Pa.
(1992).
Barry argues W. that his case should be remanded to the trial court in order to develop record that would ade quately demonstrate his overwhelming of fear Officer Boran. A remand is unnecessary. At trial Barry argued that he offered very little resistance his struggle with Officer Boran, if and that she hand, had not cut her no assault charges would have resulted. In light of the record that exists, any testimony relating subjective W.’s fear would not support a finding that he needed to defend himself against excessive or deadly force being by used Officer Boran. adjudication of delinquency upon based the finding that Barry W. aggravated committed assault is affirmed.
CONCLUSION In reiterate, conclusion we although a “lawful” arrest is an essential necessary element to sustain a conviction for resist- ing a determination that the arrest was “unlawful” will justification never serve as for the act of resistance. French not, se, does per justify “resistance” to arrest. The holding of French is limited to those rare instances when an arrestee reasonably believes it necessary defend against him/herself deadly force excessive unnecessary unlawfully the use of arresting the officer. of only part the Biagini, we reverse appeal
As to the of affirmed the conviction Superior Court which Order of of remaining portion affirm the arrest. We for aggra- Order which affirmed conviction Superior Court disorderly convictions for and reversed the vated assault drunkenness, weapons and conduct, prohibited offensive public marijuana. Accordingly, of of a small amount possession is remanded is vacated and matter judgment of sentence consistent with imposition court for the of sentence trial opinion. this matter W. the Order resisting arrest guilt as to the determination
which vacated finding delinquency on adjudication and affirmed the affirmed. assault charge guilt as relinquished. Jurisdiction
ZAPPALA, J., in concurs the result.
PAPADAKOS, J., dissenting opinion a which files J., CASTILLE, joins.
MONTEMURO, J., designation. sitting by PAPADAKOS, Justice, dissenting. defendant was convicted Biagini, matter that the defen- dispute facts are not
resisting arrest. The officer) (the police from servant preventing public dant was a public of a disturbance. duty investigation a discharging —the unambiguous. clear arrest The definition Code, § arrest is the Crimes Pa.C.S. Under defined as: if, degree misdemeanor of the second
A commits a person effecting servant public a preventing with the intent from person any duty, other discharging arrest or lawful public bodily ipjury risk of a substantial creates else, justifying or anyone employs or means servant requiring substantial force to overcome the resistance. added). (emphasis majority ignores the element of preventing the dis-
charge any (i.e., other duty the investigation of a public disturbance) and concentrates on the element of lawful arrest. That is not the issue this case. The issue is whether defendants were resisting interfering the police officer’s investigation of the public disturbance and not resist- ing so, If arrest. they guilty are of violating Section lawful 5104. That’s how the statute is written and that’s how we apply should it. W.,
In I would affirm the Superior Court.
CASTILLE, J., joins this Dissenting Opinion.
Supreme Pennsylvania. Court of
Feb. 1995. ORDER PER CURIAM: *16 NOW,
AND this 7th day of February, having there been filed with this David H. Shreve his verified Statement of Resignation 13, 1995, dated January stating he resign desires to from the Bar of the Commonwealth of Pennsylvania accordance with the provisions of Rule Pa.R.D.E., it is