In the Interest of Barry W.

A.2d 669 of BARRY W. In the Interest Appeal BARRY W. Pennsylvania.

Superior Court Sept. 1992. Argued 2, 1993. Filed March for Scarpa, Philadelphia, appellant. C. Steven Com., McDonald, for Atty., Philadelphia, Dist. John K. Asst. appellee. CAVANAUGH, ROWLEY, Judge,

Before President SOLE, TAMILIA, KELLY, McEWEN, BECK, DEL ELLIOTT, and FORD JJ. POPOVICH McEWEN, Judge. adjudicated appellant an from an which appeal

This is order aggravat of offenses of upon based commission delinquent arrest, 2702(a)(3), assault, resisting § 18 Pa.C.S. and ed § of found the panel 5104. A divided this Court Pa.C.S. resisting of arrest but evidence insufficient to the offense of adjudication of on the basis delinquency affirmed the Court, response in to the charges of assault. This aggravated reargument for filed the Commonwealth its petition in order to “have reargument imperative contention that appellate its role of review proper confine itself to Court claims”, granted en banc review. sufficiency of the evidence pursuant prescribed our standard engaged, We have review, the applicable in a review the record and thorough law, to sustain the again find the evidence insufficient , adjudicat affirm the order resisting for arrest1 but conviction aggravated assault ing delinquent based appellant charges. hereinafter, fully reject we as meritless the chal-

1. As set forth more lenge sufficiency charges aggravated to the of the evidence as to the assault. The opinion of the distinguished Judge Frank X. O’Brien provides an summary accurate presented the evidence the Commonwealth at trial:2 4, 1990, defendant, (d.o.b.

On September W., Barry 8/24/72) assault, was tried and found guilty aggravated assault, simple and resisting adjudged arrest and delin- A quent. post-trial motion for a new trial on grounds that there was insufficient evidence to show intent or knowledge 2702(a)(3) assault) § under 18 (aggravated Pa.C.S. or pro- arrest) § hibited conduct under 18 Pa.C.S. 5104 (resisting was denied on 1990. October Testimony at trial indicated that August approximately 10:05 p.m., police officer David Ashby, while a marked vehicle partner, with a received a radio (sic) call: “Investigating selling male narcotics” at specific (2) Ashby, uniform, location. Officer observed two males standing on a corner at designated location. He ap- proached the two males and said: “stop police”. The (2) males, defendant, two being one began to run. Officer Ashby pursued the defendant in the belief that the latter selling drugs and observed the defendant throw object person another which the officer believed was narcotics. Ashby pursued Officer on foot partner and his followed point, vehicle. At that Officer partner joined and his were by uniformed police officers Mays and Borans. Ashby attempted

Officer to arrest and “cuff’ the defendant while Officer Delores Borans tried to hold defendant. At point some the defendant turned and struck Officer Borans. In the continuing struggle defendant then pushed Officer Borans with the flat of his hand into a truck parked couple away. of feet As a result of the push Officer Borans fell against the rear of the truck and cut her hand on a broken window. presented

2. The Commonwealth testimony Ashby of Officer and chase, Officer Borans. Officer was the officer who initiated the injured and Officer Borans was the female officer who was when she against attempting fell arresting truck while to assist the officers.

553 insufficient to argues that the evidence is Appellant first resisting the offense of elements of the essential establish assault, 5104, § 18 arrest, or Pa.C.S. aggravated 18 Pa.C.S. 2702(a)(3) failed to es- evidence § since the Commonwealth’s arrest that arrest- been lawful tablish that there had While we public duty”. other “discharging officer was ing aggravated offense of sufficient as to the find the evidence assault, one of the essential find it insufficient establish we arrest, resisting specifically, of the offense elements itself was lawful. the arrest involving challenge scope appeal

Our review is well-settled: sufficiency the evidence in a criminal sufficiency The for the the evidence test every prove evidence is sufficient to case is whether the beyond a reasonable doubt. See: element of crime (1979). 572, 485 403 A.2d 536 Harper, v. Pa. Commonwealth determination, court must reviewing making to the light in the most favorable Com- view the evidence winner, accept true all monwealth as verdict all reasonable inferences therefrom evidence and believed, which, could have based properly if the fact finder Davis, 363, 421 491 A.2d v. Pa. its verdict. Commonwealth (1980). 179 1264, 521 555 A.2d Hughes, v. Pa.

Commonwealth (1989). Thomas, Pa. 522 Accord: Commonwealth (1989); 262-64, v. Hardcas- A.2d Commonwealth (1992); tle, 236, 244-46, Common- 417, 419-21, A.2d Gaynor, wealth v. (1992); 49- Sample, 51, 410 Commonwealth, brief, in its characterizes the evidence trial as follows:

produced at met clearly in this case The Commonwealth’s evidence of a here a radio call male standard. The officers received from their only a corner three blocks selling narcotics at later, pulled up their they A few minutes location. very at the standing car saw two males patrol marked radio One of the uniformed corner named call. moment, investigate. At that the car to officers exited shelter, fled into immediately males, under a who were two they but stop, ordered them rain. The officer driving tossed an defendant flight, from him. continued to run his cohort. drugs, to be officer believed object, which the and, struggle, subdued after chased defendant The officer him. and handcuffed that we are the Commonwealth with agree we

While for the factual the evidence our view of to substitute not free court, by the sufficien presented the issue the trial findings of conclusion to be legal involves the in this case challenge cy as an the trial court. We by facts found from the drawn to utilize a authorized, required, indeed court are appellate legal determining validity scope of review plenary the trial court. made conclusions cause or reasonable probable of whether The determination legal is a conclusion activity exists of criminal suspicion court. suppression as found from the facts be drawn Ohio, 13 L.Ed.2d 85 S.Ct. 379 U.S. Beck v. See (1964). 429, 435, 605 Stubblefield, by the Common presented the evidence

Thus, utilizing only that evidence was whether must determine this Court wealth follows: testified as 3. Officer MR. RILEY: BY received? Q. the information What was selling Investigating narcotics. male A. Q. Where is that? 61st and Lansdowne. A. you go Q. to 61st and Lansdowne? Did Yes, that’s correct. A. you observe? anything Q. did What if standing corner 61st and Lansdowne on the two males A. I observed running. they approached start as I Q. here? Is one of them Young right here. man A. you approached them? you say to them when anything Q. did What if said, running down the street. It "Stop police” they start A. I chasing them down in the middle behind raining hard. I was 19-Tom-#, one black male” with "Pursuit of radio came out block as District, we start of the 19th Mays and Officer Borans with Officer up pursuit. we They As met closing vehicle. came on their truck, he started to tussle. got we hold of him in front of the Q. got of him? say to tussle? Who ahold You started trying Officer Borans was got I of him. I was to cuff him. A. hold swung hit her first time. trying hold down. He around him Q. standing her? was he struck Where she when he her him. time turned around toward A. She was behind Second pushed her toward the truck. Q. happened to the officer? What something her on on the truck. A. She cut hand Q. Now, you apprehending fact the defendant? did succeed him, holding my I partner cuffed him. was him A. Yes. I didn’t cuff down. Q. Officer, any you Why purpose for if did chase defendant? what begin you did to chase defendant? object in the air as he was A. he started to run. He threw an Because running. íH 4: sft sis Q. you got anything you going on when there? if did believe What they selling drugs. IA. believe were A. Yes. A. A. A. Yes. A. A. A. A. Q. A. As I exited A. Yes. Q. Three-quarters Q. A. Q. A. Q. Q. Q. Q. Q. Q. BY Q. Q. Q. you caught that was they much Yes. Three-quarters Yes, was. Driving MR. That’s About Your Real When 64th Both You When From the time Where Standing over a Did Dark It was When were time afterward you it went from 64th Street down Lansdowne BANK: hard. and Lansdowne. partner was ran? Under night? you caught you arrived there at 61st Street and two or three minutes. you correct. still were raining the vehicle behind him. just standing proceed him, arrived they ledge you of the block. you saw aof how 61st hard? ran. ledge? when sj: to exit the vehicle? him chasing on the or roof. block? long Street there? three-quarters you got sf: the two it? scene, him, or Lansdowne? distance was it? s[s the radio call? too? young after sfc you got the men under the ^[*] n ! saw way Avenue? s{i these down the block radio ledge two males call, until how of the offense each of the elements to establish

sufficient assault. aggravated resisting arrest Williamson, Pa. provides: of the Crimes Code

Section if, degree of the second a misdemeanor A commits person effecting servant public preventing the intent with duty, person other discharging arrest or a lawful injury public to the bodily risk of a substantial creates or else, justifying means employs or anyone servant the resistance. force to overcome substantial requiring Street. A. On 61st Q. your partner was in a vehicle. point you saw him when At Borans there? Was Officer Yes, she was. A. Q. occurred? trying cuff him when this were You A. Yes. Q. you trying to cuff him? were How sweaty. slippery. tussling. He was He was Him. He was A. Grab trying to hold him. We were Q. you behind him? have his arms Did got we did. everybody on him A. After A. When A. A. Officer A. Officer A. The Q. Q. You saw that? Q. Q. Q. Q. [OFFICER correct? Yes. You saw When Did He’s been Officer you Officer went to he went over to you BORANS:] Ashby from the other Ashby? in fact the Officer here first arrived and his arrive when Officer today. He ^[*] approach the male. approach the male before partner. patrol car was in foot # on the scene what male, just ^[*] testified. the male Ashby ^{[*] [*]} was fled from him. exiting his vehicle? pursuit. occurring? *(cid:127) he ran; is that A. Yes. Q. that? Where was going 61st and Lansdowne. They were north on A. Q. you with cuff’s and Where were incident occur? Where did the parked? the broken window was the van with where A. On 61st Street. Q. you them do approached the males did see When Officer anything run? beside A. I don't recall.

557 Montemuro, Frank § The Justice J. 5104. eminent Pa.C.S. of essential elements Jr., colleague, clarified the while still our opined: when he resisting arrest the offense disjunctive. § clearly 5104 are Pa.C.S. provisions 5104, it §of provision first To convicted under the be See Commonwealth be lawful arrest. essential there (1982); Eberhardt, Com- 450 A.2d Whitner, A.2d 414 241 Pa.Super. monwealth Bartman, 240 (1976); Commonwealth v. 238 Pa.Su- (1976); Stortecky, Commonwealth v. is no In this case there

per. underlying resisting to show that the arrest evidence the trial parties In fact both charge lawful. arrest have did not the York officers agree court is, for “hit and run”—that a lawful arrest authority make an attended hitting of an after the scene accident leaving presence did not occur the incident vehicle—because circumstances, appellant Under such the officers. law, not, under the as matter of be convicted could pertaining § to lawful arrest. provisions §of provision the latter foregoing, light duty” besides any public other pertaining “discharging To arrest, be upon. must be relied effecting lawful §of it is essential provision the latter convicted under within the “discharge duty” be a other that there argument If accept of the statute. we meaning court, Commonwealth, would be as did the trial statute to stand charge arrest every resisting to allow interpreted a supported by lawful arrest. whether not was an argue every in case where there undoubtedly would duty they discharging by a merely arrest that were unlawful surrounding underlying the investigating the circumstances interpretation an abuse invited such grave incident. The § duty” of “discharge provision other An of what was con- contemplated. not indication clearly 242.2 of the Model turning is found Section templated Code, § after. The Model 5104 was modeled Penal which (Official § Draft and Revised Penal Code 242.2 comment 1980), obstruction physical deals with the Comments which duty, states: discharge public in a host of interference physical 242.2 covers ‘Section discharge legal in which servants public circumstances include, other than arrest. example, These for duties warrant, putting a search a fireman executing policeman re- blaze, making official agricultural out a a forest or moni- charged election official with inspections, an quired like.’ toring balloting, and the not have sent that the court below should Therefore we hold the evidence jury arrest to the because resisting the issue of guilty beyond support verdict was not sufficient reasonable doubt. Karl, 97, 102-03, 476 A.2d

Commonwealth (1984) in The rationale of the original). (emphasis here, and so compelling as jurist just applicable eminent is to establish that required we hold that the Commonwealth in one of lawful order to establish appellant the arrest of arrest. resisting of the offense of essential elements I. PROBABLE CAUSE argues proba that there was first The Commonwealth chase, when, “he took during appellant to arrest ble cause fleeing it to his carrying and tossed object that he was cohort”, of this Court citing opinion Chase, dispositive 575 A.2d 574 find this contention issue before us. We probable cause arrest probable found cause to This Court devoid of merit. characterizing the case as a “close Chase although existed from the officer purchased one”, drugs an undercover where partner, his uniformed immediately radioed defendant and just purchased that “he had away, blocks stationed a few a blue shirt in the 1900 wearing black man narcotics from a Orthodox, of Lackawanna and Ortho at the corner block of officer, corner arriving at uniformed dox”. The shirt, defendant, man, dressed a blue a black observed alighted corner. The officer the aforementioned standing at “Police”, appel- whereupon his vehicle and announced fled, officer. only by pursuing lant to be overtaken case, contemporaneous no evidence a instant there was of officer. to much to an undercover anyone sale less drug of any person kind description no physical There was And selling tipster. be drugs anonymous to alleged to the item thrown description no of or reference there is an to than references to “ob- appellant companion his other asked to describe Ashby. The officer was not ject” by Officer if the way “object” was not asked object cloth, small, dull, light. dark or shiny or metallic large or a an reference to “ob- Certainly, undescriptive so bland and arising inferences attribution of all reasonable ject”, even after probable cause for a cannot suffice to establish therefrom warrantless arrest.

II. REASONABLE SUSPICION argues in the alternative that the The Commonwealth Ashby, Officer a stop appellant was lawful since forcible male investigate selling drugs an to anonymous tip result of Street, suspicion had to the corner of 61st reasonable investigatory stop appellant. support that criminal suspicion “If have a reasonable [the] afoot, activity they may temporary, investigatory is make a lack to make an though they probable even cause stop 136, 141, Capers, arrest”. Commonwealth (citation omitted). (1985) stop initial if legitimate investigating “[c]an officers person in conjunction facts point specific and articulable which war- reasonably therefrom deriving with rational inferences Prengle Pa.Su- [293 rant the intrusion”. Commonwealth ], per. supra. stop Such useful to the investi- acquisition facilitates the information gating officers: may recognizes good that it be the essence

Terry A brief response---- stop an intermediate adopt work individual, suspicious order determine his identi- of a momentarily or to maintain the while ob- ty quo status in light may be most reasonable more information taining the time. to the officer at of the facts known Williams, 145-46, 1921, 143, 92 S.Ct. v. Adams 407 U.S. (citations omitted). (1972) 1923, L.Ed.2d 612 32 Jackson, 433, 437, A.2d 519 v. Pa.Super. 359 Commonwealth (1986). 427, 429-430 Terry stop to be constitutional

However, in order for a specific and rely “must officer ly permissible, infer which, with rational together if taken articulable facts facts, a belief that reasonably warrant ences those Williams, 407 U.S. Adams v. is afoot.... activity criminal 612, 1923, 616-17 1921, 32 L.Ed.2d 143, 145-46, 92 S.Ct. Smith, 6, A.2d v. Pa.Super. 396 577 Commonwealth (1972); Martinez, v. (1990).” 403 Pa.Su 1387, 1389 (1991) 513, 125, 127-28, (emphasis supplied). A.2d 514 588 per. Brown, 190, 187, v. 565 388 Accord: Commonwealth White, 325, 110 v. Alabama 177, (1989); 496 U.S. 178 Buie, Maryland v. (1990);. 494 2412, 110 L.Ed.2d. 301 S.Ct. United (1990); 1093, 325, 108 L.Ed.2d 276 110 S.Ct. U.S. Sokolow, 1581, 1 1, 104 L.Ed.2d v. 109 S.Ct. States 490 U.S. Cortez, 411, 690, L.Ed.2d v. 101 S.Ct. 66 U.S. ; 449 U.S. Texas, 47, 51, 99 and Brown (1981); 443 U.S. S.Ct. 621 in (1979). recognized As Court 61 L.Ed.2d Jermaine, A.2d 1058 re Interest of (1992), the denied, (1990), 643, 607 A.2d 253 allo. to the United States the Fourth Amendment purpose Article 8 of purpose as the Section as well Constitution Constitution, Pennsylvania interference en- oppressive and arbitrary prevent “to personal security privacy with the forcement officials Martinez-Fuerte, United States U.S. individuals.” (1976). 3074, 3081, As 49 L.Ed.2d 96 S.Ct. free put are remains questions to whom long person as the has been no away, and walk there questions disregard as would liberty privacy or person’s intrusion particularized some require the Constitution under person “But if the refuses objective justification____ ... to obtain an steps additional and the take answer minimal answer, imposes Fourth Amendment some then the justification to validate the detention objective level of seizure.” Jermaine, 509-11, quoting 582 A.2d at supra

In re 1758, 1762, 104 S.Ct. Delgado, INS v. U.S. L.Ed.2d 247 only that the basis for the

The Commonwealth concedes the radio bulletin to initial Officer approach by description no “investigate selling drugs”. male There was felon, no other alleged anonymous tip possessed and the insuffi- certainly This information was reliability. indicia of constitutional law to as a matter of both state and federal cient the absence suspicion support stop establish reasonable investigating officers. corroborating observations demanding is a less standard than suspicion Reasonable suspi cause not in the sense that reasonable probable only in information that different cion can be established with is probable or content than that to establish quantity required cause, can suspicion but also the sense reasonable is less reliable than that re arise from information Williams, probable supra, to show cause. Adams v. quired demonstrates as much. there assumed that the unveri We might fied from the known informant not have been tip cause, probable to establish but neverthe enough reliable sufficiently justify Terry stop. less found it reliable to a U.S. ^[143] at 147, 92 S.Ct. 1921 [at 1923], 32 L.Ed.2d 612. cause, suspicion, probable dependent Reasonable like upon possessed by police both the content of information reliability. factors—quantity Both and degree and its in the of the circum quality—are “totality considered Cortez, v. picture”, stances—the whole United States 411, 417, 690, [695], 621, (1981), U.S. S.Ct. L.Ed.2d evaluating that must be taken into account when whether Thus, relatively if a has a suspicion. tip there is reasonable reliability, required more information will be degree low than would requisite quantum suspicion to establish the if required tip [Illinois v.] be were more reliable. 527], 213, 2317, 103 S.Ct. 76 L.Ed.2d Court [462 Gates U.S. in this approach of the circumstances totality its applied manner, known to taking into account the facts officers observation, anonymous tip personal giving reliability light its indicia weight it deserved in work. The same through independent police established context, the suspicion applies the reasonable approach be being suspicion the level of that must only difference established. White, 2416, 325, 330-331, 110 v. 496 U.S. S.Ct.

Alabama added). (1990) (emphasis 110 L.Ed.2d 301 , partner his were directed The fact that Officer tip “investi message upon anonymous radio based by a upon alter the fact that selling drugs” does not gate male ledge out of men under the roof standing the two approaching rain, then have information the officers did not sufficient Jackson, 359 Terry a Commonwealth v. justify stop. See: (1986); 433, 437, v. Adams Williams, 32 L.Ed.2d 612 407 U.S. S.Ct. Pa. Lagana, Commonwealth Cf. (1988) 1351, 1354 (Terry permissible and frisk where stop years age male 20 to 25 radio indicated a white broadcast corner of 9th and yellow a raincoat was wearing and, gun arriving Philadelphia with Wharton Streets later, his “a white male in the officers observed two minutes pres raincoat who made his wearing yellow twenties early casing more he was business even obvious because ence rain”); pouring in the pair with a of binoculars establishment Anderson, 392 A.2d 1298 (Police for and suspicion Terry stop reasonable did not have that male named on a radio broadcast a black frisk based style wearing a haircut a dark about 5'10" tall with bush Perry coat, drug program, from a rehabilitation escaped who had in Philadelphia). was in a bar 57th and Master Streets argues appellant’s flight, The that officer, consti being the uniformed approached created á reason corroborating the detail and requisite tuted afoot, a activity justifying criminal was suspicion able that and argument important, interesting This raises stop. forcible consti scope of the regarding the issues exceedingly complex of this Commonw to the citizens afforded protections tutional ealth.4 altered recently Supreme Court States

The United suspicion/flight in reasonable utilized historically analysis —D., -, U.S. when, v. Hodari cases California items (1991), held that the Court 113 L.Ed.2d S.Ct. stop were attempted Terry a during flight abandoned for of the basis legality inquiry into without admissible stop. attempted high a Hodari, patrolling officers were plain-clothed California, Oakland, they spotted when section of crime parked which was around a car congregated youths several car, the unmarked seeing the officers’ Upon curb. on a suspicions directions. With flight different took group a foot During aroused, pursued youths. the officers officer, a tossed small and one Hodari Hodari chase between tackled and handcuffed. and was thereafter object, rock-like Hodari, and in cash were found A pager $130 to be crack cocaine. was determined property abandoned trial, suppress motion to the evidence Hodari’s At reversed, finding court appellate appeal, denied. On seized at the time he abandoned Hodari had been of the Fourth violation and the seizure property, Court, Supreme to the On certiorari Amendment. Califor- requisite did not have the that the nia conceded officers However, the state stop Hodari. suspicion reasonable was whether appropriate inquiry the more argued property when he abandoned had been seized Hodari been unsuc- stop Hodari had attempt officer’s where the argument per- adopted California’s The court cessful. reason- of whether overstep question inquiry mitted the attempt- such Terry stop, for a where existed suspicion able opinion, fleeing suspect. was thwarted stop ed Scalia, approach common law utilized a by Justice authored reasoned that and arrest and of seizure question to the 1, Section 8 of the effect of Article Appellant not briefed the issue has 4. Pennsylvania on this issue. Constitution 564 refused to submit to had not occurred where Hodari

seizure and, therefore, not there was authority the officer’s show of Concluding that Hodari had liberty. a restraint on Hodari’s seized, court reasoned that the crack cocaine not been lawfully by recovered property, abandoned which was was against Hodari. and was admissible evidence police identical factual situation. Instantly, we have almost officer did not by who Appellant approached was activity, of criminal but suspect appellant have to reason of a that reported passerby observation acting was Hodari, As in “acting appellant suspiciously”. authority, made a which uniformed officer show Despite fast”. ordering appellant to “stand case fled appellant detain attempt appellant, officer’s to scene. 313, 324-25, 609 Peterfield,

Commonwealth v. (1992) Opinion (emphasis supplied) (Dissenting A.2d J.). Ford-Elliott, D, case, to had Officer pursuant In the Hodari instant “object” appellant, and had it thrown retrieved contraband, it have been would prohibited weapon been a However, property. into evidence as abandoned admissible is by the case at bar whether question presented forcibly appel- detain suspicion established reasonable flight lant. We think not. held,

This and of previously “flight, Court has itself, to arrest. Common probable cannot constitute cause Pa. 301 A.2d Pegram, v. wealth pace’ upon being mere that a his person ‘quickens fact run starts to when officer by police observed him not rise give to chase does reasonable belief begins afoot, activity and is that criminal therefore insufficient other which stop, even a absent some justify Terry factor v. give rise to criminal conduct”. Commonwealth would (1991) Martinez, 125, 320, Jeffries, citing (emphasis supplied). Metz, 412 Court, A of this in Commonwealth panel (1992), a 100, with recently grappled 602 1328 Pa.Super. A.2d to a driver attempt by belated closely issue—whether sufficient, alone, to constitute standing a roadblock was avoid stop. an While suspicion justifying investigatory reasonable was, Court, decision5, that it plurality a held Kelly, colleague, John T.J. reasoning Judge of our esteemed Jr., upon instructive in our reflection and resolution is before this Court: presently issue I with roadblock within compliance Because believe that a I would hold sight legally obligatory, the motorist’s police for the provides avoidance such a roadblock basis so is the motorist who does presumptively to infer to avoid its guilt seeking of his her and is conscious or could, course, rebutted The be presumption detection. suspicion, otherwise such by might dispel the facts which no evi- emergency, etc. Where e.g. evidence a medical exists, however, I would to rebut the presumption dence that crimi- officer a reasonable suspicion find the maintains stop made activity investigatory is afoot and that an nal constitutionally permissible. thereafter is in any nothing presumption I that I find about such a note Ohio, 1, 88 Terry v. 392 U.S. way inconsistent with either (1968), 1868, 20 or which progeny L.Ed.2d 889 its S.Ct. not constitute pedestrian’s flight that a alone does concludes v. 454 suspicion. Jeffries, See Commonwealth reasonable 914, (1973); v. 311 917 Pa. A.2d Commonwealth Martinez, aware, by any cited certainly court of which I am none

No systematic to judice, has authorized conduct sub therefore, pedestrian, The obligatory “sidewalk blocks”. any merely obligation comply no with detention has Florida v. Bostick U.S. being police. [501 viewed See 389], free -, supra. S.Ct. 115 L.Ed.2d ours retains the country in a free such as of course citizen suspicion Popovich opinion finding Judge wrote the lead reasonable 5. concurring upon the stop, Judge opinion based Wieand filed a issue, Judge concurring Kelly waiver of the and filed defendant’s statement. run, walk, any stop at that moment or discretion crawl circumstances, and neither accordingly, such other under any can draw adverse inferences nor courts any such discretion. exercise Metz, 118-19, supra 602 A.2d at Commonwealth J.) opinion by Kelly, original) (Concurring (emphasis law, an to hold that unwilling, are as matter We containing reliability, no indicia of anonymous tip bearing behavior, unsupported by of future predictions no officer, coupled when with observations corroborative Terry stop. justifies a forcible flight6, Martinez, Court, This denied, allo. (1991), 608 A.2d in Commonwealth (1992), rejected, that we had earlier noted 604, (1987), A.2d a similar Espada, v. Terry stop of an to a on the basis seeking justify argument officers: police to evade attempt obvious “seizure”, reasonable, to order for a or be stop, [I]n Ohio, Terry officer’s legal under therefore was activity that criminal and articulable belief reasonable of suspicious with his observation afoot must be linked particular defendant on behalf irregular behavior at Mere 970. stopped. of a vicinity or in the high near a crime area presence proclaimed: not flee ago, Innocent men do 6. Centuries some observers beliefs, course, die hard. The earth is flat. Some because the Supreme Court John Stevens United Justice Paul observations of States aptly this notion: addresses quotation mistakenly assumes gratuitous ... [Biblical] The Court’s approach no to fear the sudden residents have reason that innocent considered, rejected, ivory- strangers. previously have We experi- analysis for it fails to describe the of the real world towered residents, they particularly members a minori- many if are ence long knowledge "a matter of common that men ty.... It has been fly entirely the scene of a crime are innocent do sometimes who being guilty parties, through apprehended as the or from an fear of unwillingness appear accepted as witnesses. Nor is it true an to pursueth, ‘the flee no law that wicked when man axiom criminal States, Alberty as a ”. v. United righteous are as bold lion’ but [868], (1896). 40 L.Ed. 1051 U.S. S.Ct. —D., U.S. -, - n. 111 S.Ct. 1553 n. v. Hodari California J., (Stevens, dissenting). 700 n. 4 113 L.Ed.2d stop. a Id. justify Terry crime does not recently reported irregular behavior Conversely, an officer’s observation is afoot that crime a reasonable belief without concurrent 609-10, 528 Pa.Super. at unreasonable. 364 stop renders 970. A.2d at reason- facts which would specific, are the articulable

What afoot, when activity that criminal was ably warrant a belief the police her hands on put Lee ordered Martinez to Officer from a street away had walked quickly vehicle? Martinez her corner, holding She hands at 12:20 a.m. There up street. walking quickly front of her coat and to Martinez. no other articulable facts attributable are presented to This case is similar its facts those quite 320, 311 Jeffries, There, four officers unmarked vehicle observed saw walking along public street. When Jeffries Jeffries officers, One left the pace. officer quickened he his to run. began who then began pursue vehicle and Jeffries overtaken, package Jeffries threw small being Before recovered package under a automobile. nearby rejected Supreme heroin. Court and found contain Our arguments flight supplied that Jeffries’ the Commonwealth’s or, in for cause probable factual foundation necessary activ- alternative, grounds to believe criminal reasonable Terry The court went on was afoot under v. Ohio. ity the from under the automobile hold that evidence retrieved and suppressed, due to the unlawful police must be officers’ Pollard, 450 Pa. citing Commonwealth v. activity, coercive (1973). 138, 299 233 A.2d Martinez, 131-133, 588 A.2d at supra v.

Commonwealth (1991). v. Harper, See also: Commonwealth 515-517 (“[I]n (1992) 3, 1216 n. 3 617 n. A.2d v. Chesternut S.Ct. Michigan [486 U.S. 565], in wheth determining the Court reiterated that

L.Ed.2d occurred, utilize a has it is to Terry stop necessary er a in the to determine advance standard ‘allows Fourth contemplated implicate the will the whether conduct D., for not the case Hodari certainly Amendment’. Such is Terry thus groundless illegal and what would otherwise be Amend- outside the Fourth totally seizure becomes conduct nonsubmission”); the Com- suspect’s ment merely because 205, 210, Hunt, monwealth v. alone, course, to is insufficient flight (“Appellant’s cause”.) probable

establish recently require- reaffirmed the Supreme Our Court constitutionally are Terry stop necessary justify ments to narrowly and must be construed: based justify the Court’s “ends reject Superior emphatically We By focusing only upon attention analysis. its means” narcotics, illegal upon society by inflicted the serious ills respond necessary and recognize failed to to Superior Court conduct. The excessive constitutional constraints investigation, under activity the criminal seriousness of a violent or the commission of drugs whether it is the sale or crime, justification ignoring used for can never be every individual right the constitutional abandoning his or to be free from intrusions this Commonwealth cause. liberty probable absent personal her rationale Superi- to adopt we decline Accordingly, Commonwealth, by the arguments Court offered or thus, narrow expand appropriately decline we already probable cause suspicion” exception “reasonable v. Terry Court in Supreme the United States by established Hicks, Court Commonwealth Ohio (1969). 153, 253 A.2d 276 Pa. 614 A.2d 1378 Rodriquez, find the evidence insufficient to establish

While we arrest, challenge we find that resisting offense of is aggravated as to assault sufficiency of the evidence 2702 of assault is defined Section Aggravated meritless. as follows: the Crimes Code

(a) as- person guilty aggravated Offense defined—a if sault he:

569 knowingly or causes intentionally cause or attempts to firefighter perfor- or in the bodily injury police to a officer duty. mance of 2702(a)(3) § (emphasis supplied).

18 Pa.C.S. was that the evidence insufficient contends Appellant “in the Borans occurred injury that the Officer establish of the offense. of an essential element duty”, performance Code, aggra- the of of the Crimes offense Section 5104 Unlike assault, 2702(a)(3), § not require does vated 18 Pa.C.S. an to effectuate a during attempt assault occur the lawful 1986, amended 18 Pa.C.S. legislature the arrest. 2702(a)(3) performance “in the § the words and substituted to make a lawful “making attempting for the duty” words statute, scope This broadened the the change arrest”. protecting police of the with evidencing legislature concern injury circumstances. bodily officers under case, Borans arrived on In the instant when Officer Ashby per was partner, to assist and his she scene Officer Consequently, a duty her official as officer. forming Borans into broken win appellant pushed when Officer 18 dow, assault defined aggravated he committed an 2702(a)(3). § not Officer Whether or Pa.C.S. a since process making lawful arrest irrelevant necessary Borans performing

Officer function Ashby.7 evidence to the aid of coming officer Officer therefore, was, “perfor to establish the element of sufficient therefore, and, sufficiency duty” challenge mance rejected.8 of the evidence must be Similarly, aggravated based appellant if had been convicted of assault 7. Ashby, legality upon upon issue of the of the arrest an attack Officer sufficiency of the would have been irrelevant to determination " ‘even an unlawful arrest does evidence to sustain the conviction since ”, arresting excuse an assault officer’ not 1292, French, 436, 445, (1990), quoting Pa.Super. 578 A.2d McKeirnan, 7, Pa.Super. 487 A.2d Commonwealth v. (1985). argument summarily reject the Commonwealth failed to 8. We necessary aggravated mens rea for assault. See Common- establish (1985); Fry, 844-845 wealth v. J.L., Interest In the resisting of of therefore, finding guilty the We, vacate delinquency based arrest, adjudication affirm the but aggravated offense of committed the finding appellant the 2702(a)(3). assault, § 18 Pa.C.S. opinion. J., dissenting

TAMILIA, concurring files dissenting. TAMILIA, concurring and Judge, adjudication of of the in its affirmance majority I the join I dissent to the assault. aggravated on the based delinquency resisting arrest. as to finding guilt the vacation Supreme Court set forth our the conformity principles with McCullum, in Commonwealth winner is entitled (1992), as verdict the Commonwealth evidence, and all whether this Court determine have therefrom, most favor- light in a drawn inferences reasonable ele- Commonwealth, to establish the is sufficient able to majority’s logic I fail to see the of the crime. ments be- assault finding aggravated reasoning permits suspect attempting to subdue police officer is cause not behavior is finds the same duty yet his performance charge. performance arrest resisting of a the basis to effect appellant to subdue the duty attempt was an officers’ attempt such a forceful of cases myriad Under an arrest. or at construed as an arrest would be appellant control of take suppression would result custody into taking least providing person from the without obtained any statement arrest or this was not a lawful say To warnings. Miranda realities of modern ignore is to duty other discharging on which police a burden Opinion imposes This duties. or other law Resisting § arrest of 18 Pa.C.S. revisions cannot ask the enforcement, to alleviate. We attempted relying nature activity suspicious of a pursue vigorously of their move to limit the results then expertise their street affirm trial court. I would actions. reasonable CAVANAUGH, J., joins.

Case Details

Case Name: In the Interest of Barry W.

Court Name: Superior Court of Pennsylvania

Date Published: Mar 2, 1993

Citation: 621 A.2d 669

Docket Number: 2961

Court Abbreviation: Pa. Super. Ct.