Appellant, Stephen M. Lyons, appeals from the judgment of sentence imposed following his conviction of resisting arrest. 1 We affirm.
FACTS AND PROCEDURAL HISTORY
On March 11, 1987, appellant was paroled to the Adult Probation Office for Lycoming County. Special conditions had been placed upon his parole which required that appellant be intensively supervised. Appellant’s case was assigned to Officer Scott L. Metzger, an adult probation officer. On April 22, 1987, Officer Metzger consulted with his supervisor concerning appellant’s violations of his parole,
i.e.,
repeated failures to report as scheduled and/or as requested and failure to notify and obtain permission to move from his authorized residence with his grandmother to his mother’s residence at Powy’s Park.
2
Officer Metzger’s supervisor thereupon directed Officer Metzger to apprehend appellant for violating the conditions of his parole.
Following arraignment, appellant filed an omnibus pre-trial motion which challenged the legality of his arrest. The motion was denied. On October 14, 1987, a jury found appellant guilty of resisting arrest. Post-verdict motions were filed and denied. Appellant was sentenced to a term of imprisonment of one to two years in a state correctional institution to run concurrent with the remainder of the sentence he was serving prior to being paroled. This timely appeal followed.
On appeal, appellant contends that: (1) his arrest by the deputy sheriffs who were acting on the oral request of a county parole/probation officer, without a warrant, was not a lawful arrest for purposes of the crime of resisting arrest; (2) the evidence was insufficient to establish the degree of resistance required for the offense; (3) an improper reference to his prior criminal conduct compels a grant of a new trial; and (4) trial counsel was ineffective for failing to object timely to testimony of appellant’s unrelated prior criminal behavior. We find each of appellant’s contentions to be without merit. Accordingly, we affirm the judgment of sentence.
I. THE LEGALITY OF THE ARREST
Appellant contends that his arrest without a warrant by the deputy sheriffs was illegal. He argues first that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole viola
Before addressing appellant’s contention, we will first make a closer examination of the facts particularly relevant to this issue. Appellant had been placed on parole with special conditions which required intensive supervision. However, appellant repeatedly failed to meet the conditions of his parole. He failed to report, as scheduled and/or as requested, at least five times. He also failed to notify and receive permission from Officer Metzger to change his address as required by the terms of his parole before he moved from his grandmother’s home to his mother’s home which was located above a bar. As a result of appellant’s failure to comply with the conditions of his parole, Officer Metzger consulted with his supervisor, who then concluded that appellant's conduct constituted material violations of his special intensive supervision parole status, and directed Officer Metzger to arrest appellant as a parole violator.
Officer Metzger went to Powy’s Park twice with two other county parole/probation officers to effectuate a legal warrantless arrest. The first time appellant escaped by leaving through one of the many exits from his mother’s home, wading across Lycoming Creek, and running up the mountain on the other side. The second time appellant was not there. As a result of these fruitless visits, Officer Metzger became well aware of the layout of Powy’s Park, its several exits, and its close proximity to Lycoming Creek. Realizing that appellant could easily escape from the three parole/probation officers, Officer Metzger requested assistance from the local Sheriff’s office.
The first attempt to apprehend appellant at Powy’s Park with the assistance of the local deputy sheriffs, as well as
Appellant argues that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole violation without a warrant or court order. We cannot agree.
A county parole/probation officer is not required to obtain a warrant or a court order in order to arrest a parolee who is in violation of parole; 61 Pa.S.A. § 309.1 provides:
Probation officers heretofore or hereafter appointed by any court of record of this Commonwealth are hereby declared to be peace officers, and shall have police powers and authority throughout the Commonwealth to arrest with or without warrant, writ, rule or process, any person on probation or parole under the supervision of said court for failing to report as required by the terms of his probation or parole or for any other violation of his probation or parole.
61 Pa.S.A. § 309.1 (emphasis added).
Appellant attempts to distinguish between the arrest of a parolee on a technical parole violation and the arrest of a parolee on a criminal parole violation, implying that a war
Appellant further argues that a warrant or court order is required in order for a county parole/probation officer to order or authorize another law enforcement officer to arrest a parole violator. Again, we cannot agree.
Deputy sheriffs in Pennsylvania are statutorily authorized to come to the assistance of county parole/probation officers. The powers and duties of deputy sheriffs are defined in 16 Pa.S.A. § 1216:
Peace Officers; power and duties.
Constables, county detectives, sheriffs, deputy sheriffs, waterways patrolmen and game protectors shall perform all those duties authorized or imposed on them by statute.
16 Pa.S.A. § 1216 (emphasis added).
One of the duties “authorized or imposed” on deputy sheriffs by statute is to maintain the peace and dignity of this Commonwealth. Section 8952 provides in pertinent part:
Primary municipal police jurisdiction.
Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defendpersons or property or to otherwise maintain the peace and dignity of this Commonwealth.
42 Pa.C.S.A. § 8952 (emphasis added).
This broad grant of statutory authority plainly includes the authority to aid a parole/probation officer in effectuating a warrantless arrest of a parole violator. Any doubt as to the deputy sheriffs’ authority in this respect is removed by the provisions of 42 Pa.C.S.A. § 8953 which provides in pertinent part:
Statewide municipal police jurisdiction
(a) General Rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
******
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.
42 Pa.C.S.A. § 8953(a)(3) (emphasis added). Deputy sheriffs have express authority to come to the aid of county parole/probation officers outside of their own jurisdiction. Obviously, the broad grant in Section 8952 includes such authority within their own jurisdiction.
In the instant case, the county parole/probation officers who had requested assistance were not physically present when appellant was arrested. Rather, the deputy sheriffs were asked to attempt to effectuate appellant’s arrest before the parole/probation officers arrived because appellant had successfully evaded arrest previously. We do
II. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was not sufficient to establish the degree of resistance required to support a verdict of guilty to the offense of resisting arrest. Appellant argues that he did not resist arrest, but merely attempted to flee from the officers who were about to arrest him. Appellant asserts that he committed no physical act which could have exposed the officers to a substantial risk of danger or bodily injury which is required under 18 Pa.C.S.A. § 5104. For the reasons that follow, we find appellant’s contention to be without merit.
In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented.
Commonwealth v. Pearsall,
The degree of resistance necessary to support a charge of resisting arrest is set forth in 18 Pa.C.S.A. § 5104 which provides in pertinent part:
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest ..., 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. Appellant asserts that the act of fleeing from an arrest is not a criminal act. During the first attempt by Officer Metzger and the two other county parole/probation officers, appellant did simply flee from arrest. However, when appellant was finally arrested by the local deputy sheriffs, appellant did more than simply flee from arrest.
When the local deputy sheriffs arrived to arrest appellant, he ran into the middle of Lycoming Creek and attempted to swim downstream with the current. The water level of the creek was waist deep and, because it was early spring, the water temperature was frigid. The creek had a slippery streambed and a swift current. Two of the deputy sheriffs went into the creek after appellant. One officer, after three unsuccessful attempts, managed to get a grip of
Appellant argues that there was no evidence presented that he, at any time, assaulted or attempted to assault the officers or that he had a weapon. Appellant claims that he was simply fleeing from arrest and that no evidence was introduced which demonstrated that he created a substantial risk of bodily injury to the deputy sheriffs. His arguable claim is inapposite.
The statute does not require serious bodily injury. Nor does it require actual injury to the arresting officer. Rather, sufficient resistance is established if the arrestee’s actions created a substantial risk of bodily injury to the arresting officer.
See Commonwealth v. Butler,
Moreover, the statute includes the disjunctive phrase “or employs means justifying or requiring substantial force to overcome resistance.” Appellant’s actions unquestionably fall within the ambit of this portion of the statute. It took four deputy sheriffs to finally subdue appellant. Substantial force was thus required to overcome appellant’s resistance to the arrest.
Commonwealth v. Butler, supra; Commonwealth v. Williams,
III. REFERENCE TO PRIOR CRIMINAL CONDUCT/INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant’s third and fourth contentions are predicated upon the same argument and therefore will be treated together. Appellant contends that an improper reference was made of his prior criminal conduct which compels the grant of a new trial. Appellant further contends that trial counsel was ineffective for failing to object to this improper reference in a timely manner and preserve this issue in post-trial motions. We find both of appellant’s contentions meritless.
Appellant, in his brief, directs us to the following exchange between the prosecutor and Deputy Sheriff Matthews:
Q. Now, at that point in time, back at noontime on April 27, 1987, when they told you they needed assistance in regard to Stephen Lyons, did you know the individual they were referring to?
A. Yes, I did,
Q. And how long had you known Mr. Lyons?
A. I would say between two or three years prior to that time.
Q. During the course of that two to three years, can you tell me is [sic] you can recall approximately how many face-to-face in person contacts you had had with Mr. Lyons?
A. I would say between thirty and fifty.
(N.T. 10/14/87 at 33). No objection was made to this exchange at trial. Appellant, however, claims that this
The law is well established that the prosecution may not introduce evidence of a defendant’s prior criminal conduct as substantive evidence of his or her guilt of the present charge. Such evidence predisposes the jury and strips the defendant of innocence. However, our Supreme Court has stated that “[t]o warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.”
Commonwealth v. Carpenter,
The witness was not questioned where those contacts with appellant occurred or under what circumstances. The witness testified merely that he knew appellant, and had between thirty and fifty previous contacts with him. No criminal activity was alluded to by this testimony. Rather, to conclude that appellant had committed prior crimes from this testimony, the jury would have had to indulge in gross speculation.
See Commonwealth v. Starks,
Because an objection could not have been properly sustained, there is no merit to appellant’s contention of error, and trial counsel cannot be deemed ineffective for failing to object or preserve this issue.
See Commonwealth v. Carelli,
CONCLUSION
Based upon the foregoing, the judgment of sentence is affirmed.
Notes
. 18 Pa.C.S.A. § 5104.
. From the record, it appears that appellant’s mother lived on the second floor above a bar in a building called Powy’s Park.
. Both appellant and the Commonwealth agree that the deputy sheriffs and the parole/probation officers are law enforcement officers.
. Appellant argues that his assertions are supported by the following excerpt from our opinion in
Commonwealth v. Pincavitch,
... [I]t is only parole officers who are specifically given the right to arrest parolees without a warrant for visible violations of parole____ We find no authority for general police officers to do so.
Commonwealth v. Pincavitch, supra,
206 Pa.Superior Ct. at 543,
In Commonwealth v. Pincavitch, supra, the defendant, a parolee, was arrested by a police officer without a warrant for the summary offense of underage drinking solely because the arresting officer smelled alcohol on the defendant’s breath. This Court, invalidating the arrest, merely noted in passing that the fact that the defendant was a parolee was not relevant as he had not been declared a parole violator and was not being arrested for a parole violation.
The instant case may be easily distinguished. The deputy sheriffs were assisting the county parole/probation officers in effectuating the arrest of appellant, a properly declared parole violator, who had successfully evaded previous attempts to arrest him. Here, unlike the case in Pincavitch, the fact that appellant was a parolee and was in violation of the conditions of parole is not merely relevant, the violation of parole was the sole reason of the arrest. Hence, appellant’s reliance on Commonwealth v. Pincavitch, supra, is misplaced and his argument fails.