Opinion
J. A32033/14 No. 1429 EDA 2013
10-15-2015
COMMONWEALTH OF PENNSYLVANIA v. JEROME SHERWIN GRIER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 24, 2013
In the Court of Common Pleas of Chester County
Criminal Division No(s).: CP-15-CR-0001348-2011
BEFORE: PANELLA, OLSON, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Jerome Sherwin Grier, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas following a jury trial and convictions for nine counts of possession with intent to deliver ("PWID"), nine counts of possession of a controlled substance, forty-two counts of criminal solicitation, fifteen counts of criminal use of a communication facility, one count of criminal conspiracy, and six counts of dealing in proceeds of unlawful activities. Appellant contends the trial court should have granted his motion to suppress the wiretapped recordings of his telephone conversations as they exceeded the scope of the orders authorizing the wiretaps, erred by permitting the introduction of evidence of drugs and drug sales not relevant to Appellant, and improperly sentenced him. We affirm Appellant's convictions, but vacate the judgment of sentence and remand for resentencing.
Appellant was tried with co-defendant Khye Rivas, whose appeal is docketed at 2621 EDA 2013.
We glean the facts from the record, including the trial court's opinion:
We state the facts in the light most favorable to the Commonwealth, as Appellant challenges, inter alia, whether his motion to suppress should have been granted. See generally Commonwealth v. Landis , 89 A.3d 694, 702 (Pa. Super. 2014).
The criminal charges in this case arose as a result of a lengthy multi-agency police investigation . . . . The investigation included wiretap authorization orders issued by the Superior Court and the compilation of thousands of intercepted communications regarding the purchasing, selling and transferring of drugs and money. This investigation resulted in [Appellant's] arrest as well as the arrest of fifteen other defendants who were involved in this drug trafficking organization.Trial Ct. Op., 8/28/13, at 1.
The order authorizing the wiretap of Phillip DiMatteo, the ringleader of the drug organization, did not identify Appellant. The affidavit in support of the Commonwealth's wiretap application, however, mentioned Appellant:
29. The following is a result of toll analysis [of DiMatteo's telephone number] from December 7, 2009 through March 2, 2010, as well as pen register analysis from January 26, 2009 through March 2, 2010, are set forth below.
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d. Telephone Number (610) 466-0889
Subscriber KL Bugg
808 Lumber Street
Coatesville, PA 19320
During the period of December 9, 2009 through March 2, 2010, there were total of 166 calls, 100 incoming calls and 6 [sic] outgoing calls associated to telephone facility (610) 466-0889. The telephone is subscribed to KL Bugg.
i. A Pennsylvania Department of Transportation check for this address and listed subscriber resulted in no information being found. Your affiants also conducted various checks for KL Bugg and 808 Lumber Street, but no information was found on both the name and address. On 02/02/2010, [Appellant] was stopped by the Coatesville Police Department. At the time of this encounter, [Appellant] provided officers with his current address, 808 Lumber Street, Coatesville, PA 19320. A criminal history check and information obtained from Chester County investigators revealed that [Appellant] uses the date of birth of 03/21/1971. [Appellant] has been issued Pennsylvania State Identification Number #195-59-00-9 FBI # 903384LA9. The following is information obtained from a Criminal History Information check from NCIC: (National Crime Information Center): On 04/20/1990, [Appellant] was arrested by Caln Township Police Department for CSDDCA (possession and possession with intent) violations and sentenced to County probation and
Ex. A to Appl. for an Order Authorizing the Interception of Electronic and Wire Commc'ns, at ¶ 29(d); accord Commonwealth's Trial Ex. 2; Commonwealth's Brief at 13-14. In addition to the wiretaps, the police conducted extensive surveillance.County prison 11-23 months incarceration. On 08/10/1995, [Appellant] was arrested by the Coatesville Police Department for CSDDCA (possession) violations and sentenced to one year County probation. On 08/09/1997, [Appellant] was arrested by Coatesville Police Department for CSDDCA (possession) violations and resisting arrest ([Appellant] plead [sic] guilty and was sentenced to 6-12 months incarceration). On 11/25/2001, [Appellant] was arrested by Coatesville Police Department for CSDDCA (possession with intent) violations and sentenced to 3-6 years State Prison. On 02/02/2010 [Appellant] was arrested by the Coatesville Police Department for CSDDCA (possession) violations (disposition unreported due to charges just being filed, a preliminary hearing is scheduled for March 24, 2010).
It appears the order sealing the affidavit was lifted. Moreover, the affidavit was accepted by the trial court as an exhibit and the Commonwealth quoted paragraph 29(d) in its brief, each of which was not filed under seal.
With respect to Appellant, the police intercepted numerous calls to DiMatteo soliciting drugs. See , e.g., N.T. Trial, 1/10/13, at 91; Ex. C-36. Surveillance footage captured Appellant entering DiMatteo's residence on multiple occasions to obtain the drugs. See , e.g., N.T. Trial, 1/10/13, at 91, 101. The police testified about numerous conversations between Appellant and DiMatteo regarding various drug transactions. See , e.g., id. at 192-94. After a seven-day jury trial and four hours of deliberation, the jury found Appellant guilty of the above crimes.
Commonwealth's Exhibit C-36 is a three-ring binder with over three hundred pages of transcribed calls over a period of three months between DiMatteo and Appellant or co-defendant Khye Rivas.
On April 24, 2013, the court sentenced Appellant to an aggregate total of fourteen and three-quarters to twenty-nine and one-half years' imprisonment. Those sentences included, inter alia, eight mandatory minimum sentences based upon eight convictions for possession with intent to deliver more than ten grams of cocaine each. Appellant did not file a post-sentence motion. He timely appealed on May 15, 2013, and filed a timely court-ordered Pa.R.A.P. 1925(b) statement. Appellant also filed an untimely, supplemental Rule 1925(b) statement challenging the legality of his sentence pursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013).
Appellant raised the following issues:
Did the trial court err in failing to suppress the recordings of the Appellant's phone conversations when the seizure of those conversations was a material deviation from the authorizing orders of the Superior Court?
Did the trial court err in allowing irrelevant and unfairly prejudicial evidence of drugs and drug sales which were not directly linked to the Appellant?
Did the trial court violate the Appellant's rights to due process and to a jury trial by raising the sentencing floor without having the jury determine the weight of the drugs in question?
Did the trial court err in denying the Appellant a Recidivism Risk Reduction Initiative (RRRI) minimum sentence based on his adjudication for resisting arrest?Appellant's Brief at 5.
In support of his first issue, Appellant argues that the Commonwealth, in its application for a wiretap of DiMatteo's telephone, averred that he called DiMatteo 166 times. Id. at 20. Appellant reasons, therefore, that his identity was "known" under 18 Pa.C.S. § 5712(a)(2), and thus, the Commonwealth should have named him in the order authorizing the wiretap of DiMatteo's telephone. Id. Appellant contends that because the Commonwealth failed to comply with Section 5712(a)(2), the court should have suppressed the recorded conversations under Section 5721.1(b)(4), as the interception materially deviated from the order authorizing the wiretap. Id. at 27. We conclude Appellant is due no relief.
The standards governing a review of an order denying suppression motion are well settled:
Landis , 89 A.3d at 702 (citation omitted). We can also affirm on any basis. Commonwealth v. Clouser , 998 A.2d 656, 661 n.3 (Pa. Super. 2010).We are limited to determining whether the lower court's factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by the defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous.
We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that after October 30, 2013, the scope of review for a suppression issue is limited to the record available to the suppression court. Id. at 1085, 1089 (stating holding applies to "all litigation commenced Commonwealth-wide after the filing of this decision"). Because the instant criminal complaint was filed prior to October 30, 2013, In re L.J. does not apply.
Section 5712 authorizes the issuance of a wiretap and states in pertinent part:
(a) Authorizing orders.—An order authorizing the interception of any wire, electronic or oral communication shall state the following:
18 Pa.C.S. § 5712(a)(2).
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(2) The identity of, or a particular description of, the person, if known, whose communications are to be intercepted.
Section 5721.1 identifies the limited bases upon which a defendant may exclude an intercepted conversation and the exclusive nature of the relief:
(b) Motion to exclude.—Any aggrieved person who is a party to any proceeding in any court, board or agency of this Commonwealth may move to exclude the contents of any wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:
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(3) The order of authorization issued under section 5712 is materially insufficient on its face.
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18 Pa.C.S. § 5721.1(b)(3), (e). "[T]he Supreme Court of Pennsylvania has held that suppression of evidence is an inappropriate remedy except where suppression is necessary to protect fundamental constitutional rights." Commonwealth v. Doty , 498 A.2d 870, 886 (Pa. Super. 1985) (citations omitted). In other words, "grounds for suppression based on nonconstitutional violations of the Wiretap Act are limited to incriminating evidence resulting from a wiretap based on an interception which was unlawful or otherwise conducted in contravention of the judicial order, or because the judicial order was insufficient on its face." Commonwealth v. Donahue , 630 A.2d 259, 279 (Pa. Super. 1993) (footnote omitted).
(e) Exclusiveness of remedies and sanctions.—The remedies and sanctions described in this subchapter with respect to the interception of wire, electronic or oral communications are the only judicial remedies and sanctions for nonconstitutional violations of this subchapter involving such communications.
In Commonwealth v. Whitaker , 546 A.2d 6 (Pa. 1988), the defendant sought to suppress wiretapped conversations on the basis that the wiretap order did not identify him, as set forth in Section 5712(a)(2). Id. at 8. In that case, the suppression court refused to suppress the intercepted communications, reasoning
that the foregoing statutory provision does not require that a person be named in a wiretap application unless there is probable cause to believe that such person's communications will be intercepted. On the basis that probable cause was lacking with respect to appellant, the suppression court ruled that the evidence against appellant need not be suppressed.Id. Our Supreme Court agreed, reasoning the statute "expressly limits the situations in which individuals are to be specified by name in an application, to wit, requiring identification of individuals who are 'known,' and who are 'committing the offense,' and only when it can be said that the individuals' communications 'are to be intercepted.'" Id. The focus is on whether the Commonwealth has probable cause:
[U]nless probable cause is present, an interception order cannot be issued. It follows, therefore, that an application for an interception order should not name as targets individuals with respect to whom probable cause is lacking.
Clearly, an applicant for a wiretap cannot be expected to name persons whose communications "are to be
intercepted," 18 Pa.C.S. § 5709(3)(i), supra (emphasis added), when there are no probable grounds to believe such communications will be intercepted. To require that every person whose communications are in fact intercepted have been named in an interception order would require a high degree of omniscience indeed, obviously not intended as an element of wiretapping prerequisites.Id. at 8-9. Applying these precepts to the facts, the Whitaker Court held that suppression was not justified because, inter alia,
[t]here was no evidence of knowledge by investigating authorities that [the defendant] had ever communicated on the phone lines that were to be tapped. Nor was there any indication that [the defendant] would continue to engage in [criminal] activities with [one of the individuals whose communications were to be intercepted] and begin utilizing the intercepted lines.Id. at 9-10.
The Doty Court discussed the framework for identifying the existence of probable cause:
The standard for determining whether probable cause existed is the same as that used to determine cause for search warrants. . . . [I]n an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications relating to that offense will be transmitted, and (3) that such communications will be intercepted on the facility under surveillance.Doty , 498 A.2d at 882 (citations omitted).
The Whitaker Court approvingly cited United States v. Kahn , 415 U.S. 143 (1974), in which "it was held that the naming of an individual in an application for an interception order is necessary only when investigating authorities have probable cause to believe that the individual whose communications are to be intercepted is committing the offense for which the wiretap is sought." Whitaker , 546 A.2d at 8.
Instantly, similar to Whitaker , the Commonwealth lacked knowledge that Appellant—and not KL Bugg—was communicating with DiMatteo. Cf. Whitaker , 546 A.2d at 9-10. While the Commonwealth was aware that Appellant provided an address matching the address for KL Bugg and Appellant had an extensive criminal history for drug violations, nothing of record establishes the Commonwealth's knowledge that Appellant was using that telephone number to speak with DiMatteo and that the 166 calls related to the offenses at issue. Cf. id. at 8-10 (citing Kahn , 415 U.S. at 155); Doty , 498 A.2d at 882. Accordingly, we discern no basis for relief and affirm the trial court's disposition of this issue, albeit on other grounds. See Clouser , 998 A.2d at 661 n.3.
In support of his second issue, Appellant contends the trial court abused its discretion by permitting the introduction of evidence about the DiMatteo drug enterprise. Appellant objects to, inter alia, the introduction of an organizational chart detailing DiMatteo's drug enterprise and a bag of cocaine briefly displayed to the jury. See N.T. Trial, 1/8/13, at 135; N.T. Trial, 1/9/13, at 185. The cocaine was seized in a transaction not connected to Appellant and was used by the Commonwealth to establish DiMatteo "was a big drug dealer." N.T. Trial, 1/9/13, at 186. Appellant challenges the Commonwealth's use of such evidence as background on DiMatteo and how it led to the instant charges. We decline to grant relief to Appellant.
The standard of review follows:
The admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Further, an erroneous ruling by a trial court on an evidentiary issue does not require us to grant relief where the error is harmless.Commonwealth v. Northrip , 945 A.2d 198, 203 (Pa. Super. 2008) (citation and formatting omitted).
An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless.
After careful review of the parties' briefs on this issue, the record, and the decision of the Honorable Phyllis R. Streitel, we affirm this issue on the basis of the trial court's decision. See Trial Ct. Op., 8/28/13, at 17-21 (holding court gave extensive cautionary instructions on multiple occasions with respect to admitted evidence and jury presumed to heed such instructions). Even presuming the court erred, we would hold such error harmless given the extensive intercepted communications inculpating Appellant. See Northrip , 945 A.2d at 203.
For his third issue, Appellant challenges the legality of his sentence. Specifically, he claims that because the jury never determined the weight of the cocaine at issue, the court erred by imposing the mandatory minimum sentences. We hold Appellant is entitled to relief.
We acknowledge that Appellant raised this issue in an untimely supplemental Rule 1925(b) statement. It is well settled, however, that a challenge to the legality of a sentence generally cannot be waived on direct appeal. See Commonwealth v. Gibbs , 981 A.2d 274, 284 (Pa. Super. 2009).
In Commonwealth v. Dixon , 53 A.3d 839 (Pa. Super. 2012), this Court set forth the following standard of review:
Application of a mandatory sentencing provision implicates the legality, not the discretionary, aspects of sentencing. In reviewing the trial court's interpretation of
statutory language, we are mindful of the well-settled rule that statutory interpretation implicates a question of law. Thus, our scope of review is plenary, and our standard of review is de novo.Id. at 842 (citations and some punctuation omitted).
Recently, in a series of cases, this Court has held that mandatory minimum sentences imposed under certain subsections of 18 Pa.C.S. § 7508 were illegal. See Commonwealth v. Mosley , ___ A.3d ___, 2015 WL 1774216, at *15 (Pa. Super. Apr. 20, 2015) (vacating mandatory minimum sentence imposed under subsection 7508(a)(3)(ii)); Commonwealth v. Cardwell , 105 A.3d 748, 755 (Pa. Super. 2014) (concluding trial court erred by imposing mandatory minimum sentence under subsection 7508(a)(4)(i)); Commonwealth v. Fennell , 105 A.3d 13, 20 (Pa. Super. 2014) (vacating mandatory minimum sentence imposed per subsection 7508(a)(7)(i)); Commonwealth v. Thompson , 93 A.3d 478, 493 (Pa. Super. 2014) (holding mandatory minimum sentence under subsection 7508(a)(2)(ii) was illegal). Instantly, given the Mosley Court vacated a mandatory minimum sentence imposed under subsection 7508(a)(3)(ii)—the subsection at issue in the instant case—and the Thompson Court opined on a subsection structurally identical to the one used to sentence Appellant, we similarly vacate his sentence and remand for resentencing. See Mosley , ___ A.3d at ___, 2015 WL 1774216, at *15; cf. Thompson , 93 A.3d at 494.
Appellant lastly contends the trial court erred in finding him ineligible for a RRRI sentence. Appellant's Brief at 37. The trial court, in its Pa.R.A.P. 1925(a) opinion, concludes Appellant's prior conviction for resisting arrest demonstrated a "history of past violent behavior" rendering him ineligible for as RRRI sentence under 61 Pa.C.S. § 4503(1). Trial Ct. Op. at 27. The court observes no Pennsylvania case law exists on the "exact issue." Id. at 26. However, it suggests the reasoning of the United States Court of Appeals for the Third Circuit that Pennsylvania's resisting arrest statute constitutes "a crime of violence" is persuasive authority. Id. at 26-27 (citing United States v. Stinson , 592 F.3d 460 (3d Cir. 2010)).
Appellant argues "it can be inferred" the General Assembly did not intend a prior conviction for resisting arrest to disqualify him from a RRRI sentence. Appellant's Brief at 38. In support, he observes the RRRI Act does not enumerate resisting arrest as a per se disqualifying offense and relies on the "common law maxim, expressio unius est exclusio alterius." Id. (quoting Commonwealth v. Hansley , 994 A.2d 1150, 1157 n.3 (Pa. Super. 2010)). Appellant further asserts the trial court erred in relying on federal case law interpreting the federal statutes and sentencing guidelines. Id. at 37.
The Commonwealth responds the trial court properly found resisting arrest demonstrates a "'violent behavior'" under Section 4503(1). Commonwealth's Brief at 35. The Commonwealth reasons resisting arrest "involves a substantial risk of bodily injury" and suggests resisting arrest is equivalent to "crimes of violence" under Pennsylvania's recidivist sentencing statute. Id. at 39-40 (citing 42 Pa.C.S. § 9714(g)). Lastly, the Commonwealth asserts Appellant's reliance on the principle of expressio unius est exclusio alterius is frivolous. Id. at 40. For the reasons that follow, we conclude a conviction for resisting arrest does not, as a matter of Pennsylvania law, impute "violent behavior" for the purposes of RRRI eligibility. Accordingly, Appellant is entitled to partial relief.
Relatedly, the Commonwealth argues because resisting arrest demonstrates "violent behavior" under Section 4503(1), Appellant's pending charges of resisting arrest would also disqualify him from eligibility under Section 4503(5). Commonwealth's Brief at 41.
As set forth in Hansley : "The issue in this appeal involves statutory construction, which is a question of law; thus, our review is plenary. In interpreting statutes, we are guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991, as well as our decisional law." Id. at 1185 (citation omitted); Braun v. Wal-Mart Stores , Inc., 24 A.3d 875, 953 (Pa. Super. 2011) (per curiam), aff'd, 106 A.3d 656 (Pa. 2014).
Moreover, although RRRI eligibility falls in the hazy area between "non-waivable illegal sentencing matter and waivable legal questions," this Court has previously considered the failure to impose a RRRI sentence as an illegal sentencing matter issue. See Commonwealth v. Tobin , 89 A.3d 663, 669-70 (Pa. Super. 2014); Commonwealth v. Robinson , 7 A.3d 868, 871 (Pa. Super. 2010). Thus, the failure to impose a RRRI sentence "is subject to sua sponte correction[,]" and our standard and scope of review is de novo and plenary. Tobin , 89 A.2d at 669-70; Commonwealth v. Barbaro , 94 A.3d 389, 391 (Pa. Super. 2014).
When considering statutory language, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." If the words of a statute are clear and unambiguous, we should not look beyond the plain meaning of the statutory language "under the pretext of pursuing its spirit." Accordingly, only when the words of a statute are ambiguous should a reviewing court seek to ascertain the intent of the General Assembly through consideration of the various factors found in Section 1921(c).Commonwealth v. Chester , 101 A.3d 56, 62-63 (Pa. 2014) (ciations omitted).
Section 4503 of the RRRI Act defines "eligible offender" in relevant part as follows:
A defendant or inmate convicted of a criminal offense who will be committed to the custody of the department and who meets all of the following eligibility requirements:
61 Pa.C.S. § 4503(1), (3), (5). As referenced in Section 4503(3), a "personal injury crime" includes "[a]n act, attempt or threat to commit an act that would constitute a misdemeanor or felony under . . . 18 Pa.C.S. Ch. 27 (relating to assault)." See 18 P.S. § 11.103.(1) Does not demonstrate a history of present or past violent behavior.
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(3) Has not been found guilty of or previously convicted of or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the act of November 24, 1998 (P. L. 882, No. 111),[ ] known as the Crime Victims Act, except for an offense under 18 Pa.C.S. § 2701 (relating to simple assault) when the offense is a misdemeanor of the third degree, or an equivalent offense . . . .
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(5) Is not awaiting trial or sentencing for additional criminal charges, if a conviction or sentence on the additional charges would cause the defendant to become ineligible under this definition.
Other "personal injury crimes" include offenses under Chapters 25 (homicide), 29 (kidnapping), 31 (sexual offenses), 37 (robbery), and 49 Subchapter B (victim and witness intimidation) of the Crimes Code. Additionally, 18 Pa.C.S. § 3301 (arson) and several provisions relating to the operation of a watercraft or motor vehicle constitute "personal injury crimes." 18 P.S. § 11.103.
In Chester , the Pennsylvania Supreme Court resolved whether a conviction for first-degree burglary demonstrates "violent behavior" under Section 4503(1) as a matter of law. Chester , 101 A.3d at 57. The Chester Court initially observed that "the RRRI Act does not define what constitutes a 'history of present or past violent behavior.'" Id. at 58. The Court, however, noted Section 4503(2)-(6) enumerates crimes "that render an offender ineligible to receive a reduced minimum sentence . . . ." Id. at 63. Although burglary is not included as a per se disqualifying crime, the Court construed "Section 4503(1) as a broad, 'catchall' provision" that covered "violent behaviors not otherwise identified in the RRRI Act's definition of 'eligible offender.'" Id.
The defendant in Chester was charged under the following version of the burglary statute:
(a) Offense defined.—A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
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(c) Grading.—
Chester , 101 A.3d at 58 n.1 (quoting 18 Pa.C.S. § 3502(a), (c)(1)-(2) (1990)).(1) Except as provided in paragraph (2), burglary is a felony of the first degree.
(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.
As noted by the Chester Court, this Court previously held that second-degree burglary did not constitute "violent behavior" under 61 Pa.C.S. § 4503(1) because "illegal entry into an unoccupied structure, does not involve the risk of violence or injury to another." Id. at 59 (discussing Commonwealth v. Gonzalez , 10 A.3d 1260 (Pa. Super. 2010)). The Chester Court did not address whether second-degree burglary constitutes "violent behavior" under the RRRI Act. Id. at 60 n.7.
Neither the parties nor the trial court had the benefit of Chester , which was decided while this appeal was pending.
The Chester Court noted the per se exclusions include "offenses involving deadly weapons in Section 4502(2); personal injury crimes enumerated under Section 103 of the Crime Victims Act in Section 4503(3); certain sexual offenses in Section 4503(4); and specific drug offenses in Section 4503(6)." Chester , 101 A.3d at 60-61 (footnote omitted).
The Chester Court held first-degree burglary convictions render a defendant ineligible to receive an RRRI-reduced minimum sentence under Section 4503(1). Id. at 65. The Court reviewed the treatment of the offense at law, as well as the structure and language of the burglary statute. See id. at 64-65. Specifically, the Court reasoned that "it is well established within our case law that '[b]urglary is a crime of violence as a matter of law[.]'" Id. at 64. It observed, "burglary has been treated as a crime of violence dating back to the common law of England, which . . . punished burglars with death '[b]ecause of the great public policy involved in shielding the citizenry from being attacked in their homes and in preserving domestic tranquility." Id. at 64. Tracing the treatment of burglary at law, the Court noted the following. "[A]ll burglaries are crimes of violence for the purposes of the significant history of violent felony convictions aggravating circumstance for capital sentence." Id. (discussing 42 Pa.C.S. § 9711(d)(9)). Moreover, first-degree burglary is expressly listed as a crime of violence under Pennsylvania's recidivist sentencing statute, as well as a disqualifying offense for boot camp. Id. (discussing 42 Pa.C.S. § 9714(g) and 61 Pa.C.S. § 3903).
The Chester Court further reviewed the text of the burglary statute and discerned a distinction between first- and second-degree offenses, "as first-degree burglary contemplates the potential for confrontation, whereas second-degree burglary does not." Id. The Court emphasized a conviction for first-degree burglary imputed a risk of confrontation and violence, because the structure invaded was either adapted for overnight use or an individual was present at the time of entry. Id. at 65.
Of note, the Chester Court, in holding that Section 4503(1) encompasses all "'violent behavior' in addition to the enumerated crimes contained in Section 4503(2)-(6)[,]" specifically rejected the defendant's suggestion to apply the maxim of expressio unius est exclusio alterius. Id . at 63. Furthermore, the Court dismissed the defendant's argument that his prior burglaries did not involve violent behavior, concluding: "it is an offender's non-privileged entry, which 'invit[es] dangerous resistance' and, thus, the possibility of the use of deadly force against either the offender or the victim, that renders burglary a violent crime, not the behavior that is actually exhibited during the burglary." Id. (citation omitted).
Mindful of the guidance in Chester , we consider whether a prior conviction for resisting arrest falls within the meaning of "violent behavior" under Section 4503(1). Under the common law, obstruction of the execution of lawful process was an offense against public justice and authorized the officer to use force to ensure compliance without fear of civil liability. See People v. Nash , 1 Idaho 206, 211-12 (1868); 4 William Blackstone, Commentaries *129, *179. Further, the common law envisioned that resistance to lawful process established malice for murder if the resistance resulted in the officer's death. Id.; 4 Blackstone *200-01.
As noted below, resisting arrest occurs when "[a] person . . . with the intent of preventing a public servant from effecting a lawful arrest . . . 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. § 5104. The offense is graded as a misdemeanor of the second degree.
The Nash Court stated resisting arrest
is an offense at common law . . . . Blackstone says: "Obstructing lawful process is at all times an offense of a very high and presumptuous nature, but more particularly so when it is an obstruction of an arrest upon criminal process. And in civil cases resistance will justify an officer in proceeding to the last extremity. So that in all cases, civil or criminal, when persons having authority to arrest or imprison are resisted in so doing while using the proper means for that purpose, they may repel force with force, and need not give back." Officers of justice while in the execution of their offices are under the peculiar protection of the law, and killing them whilst so doing is murder. Note, also, sheriffs, constables, watchman, etc., while in the due execution of their duties, are under the peculiar protection of the law—a protection founded in wisdom and equity—for without it the public tranquillity can not be maintained nor private property secured; nor, in the ordinary course of things, will offenders of any kind be amenable to justice. . . .Nash , 1 Idaho at 211-12 (citations omitted).
Plainly, the traditional offense of obstruction protects police officers. At the same time, criminalizing resistance channels an individual's behavior toward compliance with an officer's commands and ensures the orderly administration of law. Cf. Commonwealth v. Williams , 496 A.2d 31, 43, 50 (Pa. Super. 1985) (en banc) (suggesting crime of assault protects person and resisting arrest protects "time-tested yet fragile social balance whereby our elected representatives provide laws for the good of society, and public officers to execute and enforce them, and under which respect and obedience shown to officers discharging their lawful duties are as essential to the orderly administration of justice as the laws themselves."). As suggested in Williams , however, the principal "injury" attendant resisting arrest is the "administration of law," a view reflected in the continuing requirement that the underlying arrest be lawful to sustain a resisting arrest conviction. Cf. id.; see generally Commonwealth v. Biagini , 655 A.2d 492, 497-98 (Pa. 1995) (holding conviction for resisting arrest requires underlying arrest be lawful, but unlawful nature of arrest did not preclude conviction for aggravated assault of officer). But see Commonwealth v. Jackson , 924 A.2d 618, 621 (Pa. 2007) (upholding resisting arrest conviction where initial attempt to arrest was unlawful, but probable cause arose to arrest defendant for other crimes committed while resisting arrest).
As to the treatment of the offense at law, our review reveals no special consideration given to a conviction for resisting arrest under Pennsylvania statutes. Resisting arrest is not expressly listed as a "crime of violence" for recidivist sentencing purpose, see 42 Pa.C.S. § 9714(g), or in any other statute. Nor is it an enumerated crime or aggravating factor in a sentencing or rehabilitative statute. Indeed, it does not per se disqualify an individual from possession of a firearm. See 18 Pa.C.S. § 6105(b).
We address the Commonwealth's argument that resisting arrest is an equivalent offense under Section 9714(g) below.
For example, the Pennsylvania Sentencing Guidelines assigns resisting arrest an offense gravity score of two. 204 Pa. Code § 303.15. General obstruction of the administration of law under 18 Pa.C.S. § 5101 carries an offense gravity score of three. Id.
18 Pa.C.S. § 6105(b) lists disqualifying offenses prohibiting a person from possession of a firearm, and includes all burglaries, as well as several potential misdemeanor offenses, such as 18 Pa.C.S. § 5121 (escape) and 18 Pa.C.S. § 5122 (weapons or implements for escape).
The legislative history surrounding the crime of resisting arrest supports a policy distinction between the protection of the officer and the orderly administration of justice. Section 4313 of the former Penal Code, enacted in 1939, and as amended in 1963, contained an offense entitled "Obstructing an Officer in the Execution of Process or in the Performance of His Duties." The statute provided:
Whoever knowingly, wilfully and forcibly obstructs, resists or opposes any officer or other person duly authorized, in serving or attempting to serve or execute any legal process or order, or in making a lawful arrest without warrant, or assaults or beats any officer or person, duly authorized, in serving or executing any such legal process or order or for and because of having served or executed the same; or in making a lawful arrest without warrant; or rescues another in legal custody; or whoever being required by any officer, neglects or refuses to assist him in the execution of his office in any criminal case, or in preservation of the peace, or in apprehending and securing any person for a breach of the peace, is guilty of a misdemeanor, and on conviction, shall be sentenced to
imprisonment not exceeding one year, or to pay a fine not exceeding five hundred dollars ($500), or both.Commonwealth v. Anderjack , 413 A.2d 693, 696 n.5 (Pa. Super. 1979) (quoting 18 P.S. § 4314 (1963)). In 1963, the General Assembly created a separate felony offense of aggravated assault and battery upon a police officer, which carried a five-year maximum sentence. See 18 P.S. § 4314.1 (1963).
A substantially similar provision existed since at least 1860. See Act 31 March, 1860, P.L. 386, § 8; Commonwealth v. Sadowski , 80 Pa. Super. 496 (1922) (noting that obstruction criminalized failure to assist an officer pursuing suspect and "it would be a strange legal anomaly" to convict citizen obeying officer's order to assist with assault and battery of suspect).
Thus, the General Assembly traditionally distinguished misdemeanor resistance and/or assault and battery of an officer, each punishable by one year's imprisonment, from assault and battery punishable by three years' imprisonment, as well as felony aggravated assault of an officer punishable up to five years. See 18 P.S. §§ 4314, 4314.1; Commonwealth v. Nelson , 305 A.2d 369, 370-71 (Pa. 1973) (concluding, under former common-law doctrine, that conviction for assault and battery in resisting arrest under Section 4314 merged into assault and battery); Williams , 496 A.2d at 43 (aggravated assault of police officer and resisting arrest did not merge under former principal injury test).
In 1972, the Commonwealth adopted the Crimes Code based upon the Model Penal Code. The Crimes Codes established "offenses involving danger to the persons" in Article B, and "assaults" under Chapter 27, as well as "offenses against Public Administration" in Article E, and crimes obstructing governmental operations in Chapter 51. In addition to the general Chapter 27 offenses protecting the safety and well-being of any person, the former offenses of assault and battery upon a police officer in 18 P.S. § 4314 and aggravated assault and battery upon a police officer in 18 P.S. § 4314.1 were incorporated into Chapter 27. See 18 Pa.C.S. § 2702(a)(2), (3), (6) & 1972 Official Cmt. Currently, there are several provisions that specifically protect police officers. See 18 Pa.C.S. §§ 2702(a)(2), (3), (6), (7), 2702.1. Those provisions continue the common law tradition of affording special protections to police by, for example, considering "simple" assaults upon police officers as felony aggravated assault. See 18 Pa.C.S. §§ 2701, 2702(a)(6); Commonwealth v. Wertelet , 696 A.2d 206, 210 n.6 (Pa. Super. 1997); accord Nash , 1 Idaho at 212.
Under Chapter 51, the General Assembly broadened the scope of criminal liability for "obstructing administration of law" and distinguished resisting arrest. Compare 18 Pa.C.S. §§ 5101, 5104; with 18 P.S. § 4314; see also 18 Pa.C.S. § 5101, 1972 Official Cmt (noting there was no similar provision to obstruction offense in Section 5101 in existing law). Obstruction constitutes a second-degree misdemeanor for the use of "force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act" with the intent to obstruct, impair, or pervert the administration of law. 18 Pa.C.S. § 5101. The obstruction statute excludes "flight [or] refusal to submit to arrest." 18 Pa.C.S. § 5101. The intent of the Model Penal Code drafters was "to relegate such conduct to the . . . offense of resisting arrest." Model Penal Code § 242.1, Explanatory Note.
We now turn to the resisting arrest statute at issue in this appeal. Section 5104 of the Crimes Code provides:
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, or employs means justifying or requiring substantial force to overcome the resistance.18 Pa.C.S. § 5104 (emphasis added). Notably, resisting arrest is a second-degree misdemeanor, the same grade as obstruction. Moreover, resisting arrest contains alternative bases for liability, i.e., acts creating a substantial risk of injury or requiring substantial force to overcome. See Thompson , 922 A.2d at 928. The use of the term "substantial" is consistent with the 1972 Official Comment that "this section changes existing law somewhat by not extending to minor scuffling which occasionally takes place during an arrest." 18 Pa.C.S. § 5104, 1972 Official Comment. Similarly, the Model Penal Code drafters indicate their suggested "language exempts from liability nonviolent refusal to submit to arrest and such minor acts of resistance as running from a policeman or trying to shake free of his grasp." Model Penal Code § 242.1, Explanatory Note for Sections 242.1-242.8.
The drafters explained, "The policy judgment underlying this curtailment of coverage is that authorizing criminal punishment for every trivial act of resistance would invite abusive prosecution." Model Penal Code § 242.1, Explanatory Note.
The creation of a substantial risk of bodily injury to a public servant may fall within the ambit of "violent behavior" under a common understanding of that phrase, under the analytical framework set forth in Chester. See Chester , 101 A.3d at 64-65 (noting first-degree burglary viewed as a crime of violence because offender's "non-privileged entry . . . contemplates the potential for confrontation" and "'invit[es] dangerous resistance' and thus the possibility of the use of deadly force" (citations omitted)). However, this does not end our inquiry, because "passive resistance" requiring substantial force to overcome constitutes an independent basis for resisting arrest. See Thompson , 922 A.2d at 928. Thus, we consider further the nature of liability under the second element of the resisting arrest statute.
We note Webster's defines "violent" as: "1: characterized by extreme force : marked by abnormally sudden physical activity and intensity 2: furious or vehement to the point of being improper, unjust, or illegal . . . 4: produced or effected by force . . . ." Webster's Third New International Dictionary, Unabridged 2554 (1986).
In Commonwealth v. Clark , 761 A.2d 190 (Pa. Super. 2000), we sustained a conviction for resisting arrest based on the following:
The Carlisle Police responded to a fight in front of the Carlisle Tavern on South Hanover Street, just south of the Courthouse. The defendant was first observed in a crosswalk. He then approached Officer Kevin Roland at which time he was screaming profanity. When Officer Roland attempted to arrest the defendant for disorderly conduct, the defendant avoided arrest by walking backwards and walking in circles. From time to time, the defendant would assume a fighting stance. The officer then sprayed the defendant with pepper spray in an effort to subdue him. The defendant then began running down South Hanover Street in the travel lanes of the roadway. The officer ran after the defendant until Mr. Clark slipped on the wet roadway and fell down. The officer then turned the defendant over onto his stomach and handcuffed him.Clark , 761 A.2d at 191. In light of that record, the Clark Court concluded, "substantial force was thus required to overcome [the defendant's] resistance to the arrest." Id. at 193-94.
In Thompson , the defendant and her husband were involved in an argument with employees and another driver inside a parking garage. Thompson , 922 A.2d at 927. Two officers on horseback arrived and the following occurred
Officer Deborah Ewing heard profanities as she approached the garage. Once inside, she observed [the defendant's unoccupied] vehicle by the booth. [The defendant] was standing behind the car, and [the defendant's husband] was shouting at the driver of the other vehicle. When Officer Ewing attempted to get [the defendant's husband] attention by calling and whistling, he began flailing his arms and hitting the officer. While trying to control her horse, Officer Ewing informed [the defendant's husband] that he was under arrest . . . . [The defendant] approached Officer Ewing, yelling and waving her hands in an attempt to scare the horse. [The defendant] hit the horse's nose, causing the animal to rear up.
Officer Canfield then arrived on the scene, dismounted his horse to diffuse the activity among [the defendant], Officer Ewing, and Officer Ewing's horse. As the couple attempted to re-enter their vehicle, Officer Canfield yelled, pushed them against the car, threw them to the ground, and a struggle ensued. [The defendant] and her husband interlocked their arms and legs and refused to respond to Officer Canfield's verbal commands to release their hands. The officers attempted to pry the couple apart to handcuff and place them in custody. After struggling with the officers for a few minutes, [the defendant] was eventually disengaged from Mr. Thompson and handcuffed after pepper spray was deployed.Id. The defendant was convicted of resisting arrest, disorderly conduct, and taunting a police animal. Id.
On appeal, the defendant in Thompson challenged her resisting arrest conviction and argued "her 'passive' resistance to the officers' attempts to place her in custody belie[d] any intent to strike or use force against them." Id. at 928. This Court rejected that argument, relying in part upon Clark. Specifically, we observed, "Officer Ewing . . . struggled to pull [the defendant] apart from her husband with whom she interlocked her arms and legs . . . and held her arms tightly beneath him" despite the officers' commands to disengage from her husband. Id. We further noted "Officer Canfield testified that his attempts to restrain the couple to place them under arrest left him 'exhausted.'" Id. (citation omitted). Thus, the Thompson Court concluded the defendant's "use of passive resistance requiring substantial force to overcome provided sufficient evidence for upholding the resisting arrest conviction." Id.
This Court's unpublished memoranda, while not precedential, illustrate the grounds for liability under the substantial-force-required element. See , e.g., Commonwealth v. Royster , 181 WDA 2015 (unpublished memorandum at 7) (Pa. Super. June 3, 2015) (concluding substantial force required to overcome resistance, when, during lawful arrest for disorderly conduct on bus, defendant grabbed a hand-bar, yelled and struggled, and required "three police 'a considerable amount of time' to secure [the defendant's] hands" (emphasis in original)); Commonwealth v. Patrick , 1265 WDA 2014 (unpublished memorandum at 8) (Pa. Super. June 1, 2015) (concluding substantial force required to overcome defendant when after officer tackled defendant, defendant refused to show his hands and submit to being handcuffed; officer believed defendant was armed with a hammer; another officer was required to handcuff defendant); Commonwealth v. Wright , 2935 EDA 2013 (unpublished memorandum at 10) (Pa. Super. July 1, 2014) (concluding after defendant fled, "the fact that it took two police officer 10 to 15 seconds to place handcuffs on [defendant] meets the statutory language of resistance behavior that took substantial force to surmount").
We are mindful that Chester precludes this Court from engaging in a case-by-case analysis of the facts to determine whether a per se disqualifying crime imputes violent behavior. See Chester , 101 A.3d at 65. Nevertheless, our decisions in Clark and Thompson , as well as our continued application of the statute, reveal a resisting arrest conviction may be predicated upon the "substantial" use of force to subdue resistance without an express consideration of a substantial risk of bodily injury. Because the text of the resisting arrest statute does not distinguish between the alternative elements for liability, there is ambiguity as to whether a resisting arrest conviction involves "violent behavior" as a matter of law. Cf. id. at 64-65. Given this ambiguity, as well as the historical treatment of the crime, a conviction for resisting arrest is not amenable to a per se approach when determining ineligibility for "violent behavior" under the RRRI.
We are further mindful of the sound policies discussed by our courts and the federal courts that the essence of resisting arrest is the creation of a substantial risk of bodily injury and thus constitutes a "crime of violence." See Stinson , 592 F.3d at 466; Commonwealth v. Miller , 475 A.2d 145, 146 (Pa. Super. 1984); see also United States v. Jones , 740 F.3d 127, 137 (3d Cir. 2014) (holding misdemeanor conviction for fleeing and eluding under 75 Pa.C.S. § 3733 constituted categorical "crime of violence" under federal sentencing guidelines). However, given the text of Section 5104, and our applications of the statute, it is apparent our courts strictly construe and apply the plain language of the statute. Cf. 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
Thus, we turn to the Commonwealth's argument that even if resisting arrest is not enumerated as disqualifying offense, it is equivalent to other "crimes of violence." Commonwealth's Brief at 39-40 (citing 42 Pa.C.S. § 9714(g)). Section 9714(g) enumerates several per se crimes of violence, including, "aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) . . . assault of law enforcement officer as defined in 18 Pa.C.S. § 2702.1 . . . or an equivalent crime under the laws of this Commonwealth . . . ." 42 Pa.C.S. § 9714(g). However, the Commonwealth relies solely on the policies underlying resisting arrest and fails to acknowledge the significant differences between resisting arrest and assaulting a police officer, including whether injury was caused or attempted, the severity of the injury caused or intended, and the mens rea of the offenses. Thus, we discern no basis to conclude that resisting arrest is an equivalent "crime of violence" under Section 9714(g).
Compare 18 Pa.C.S. § 5104 (requiring intent to prevent lawful arrest and either creating substantial risk of bodily injury or requiring substantial force to overcome), with 18 Pa.C.S. § 2702(a)(1) (requiring attempt to cause or causing serious bodily injury to another recklessly under circumstances manifesting extreme indifference), (a)(2) (requiring same for officers) and 18 Pa.C.S. § 2702.1 (requiring, inter alia, attempt to cause or knowingly causing bodily injury to officer by discharging firearm).
Lastly, we consider the trial court's reliance upon federal decisions holding resisting arrest is a "crime of violence." Under the federal sentencing guidelines, a defendant is considered a "career offender" if in relevant part he has "at least two prior felony convictions of . . . a crime of violence[.]" U.S.S.G. § 4B1.1. The guidelines define a "crime of violence" as "any offense under federal or state law, punishable by a imprisonment exceeding one year, that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2).
In Stinson , the Third Circuit held that resisting arrest was a categorical "crime of violence" for sentencing purposes because "it involves conduct that presents a serious potential risk of physical injury to another." Stinson , 592 F.3d at 466. The Court reasoned:
Although the language of Pennsylvania's resisting arrest statute "does not require the aggressive use of force such as striking or kicking of the officer," we have found no decision under Pennsylvania law that affirmed a conviction for resisting arrest based on a defendant's inaction or simply "lying down" or "going limp." Counsel arguing before us on this appeal could cite to none in response to our questions. In fact, there are several cases in which Pennsylvania courts have recognized that resisting arrest does not extend to "minor scuffle[s] incident to an arrest." It is only when a defendant who was "struggling and pulling, trying to get away from [the arresting officer who was physically restraining him]," that he was convicted of resisting arrest, and such cases are rare.Id. (citations omitted). The Stinson Court rejected the defendant's argument that under Thompson , a Pennsylvania conviction could reflect "active" or "passive" resistance, noting that the defendant in Thompson resisted actively by, inter alia, startling and striking a police horse.
We need not quarrel with the Third Circuit's interpretation of the Pennsylvania statute as that Court applied an express definition of a "crime of violence," as well as case law on the scope of that definition. Moreover, the purposes of the RRRI statute, which concerns a defendant's eligibility for a rehabilitative program, and the federal sentencing guidelines scoring of prior convictions are sufficiently distinct such that complete congruity between the definitions of "violent behavior" and a "crime of violence" is unnecessary. Compare 61 Pa.C.S. § 4503(3) and 18 P.S. § 11.103 (rendering defendant ineligible for RRRI for prior conviction for all Chapter 27 offenses, including simple assault) with Stinson , 592 F.3d at 463 (noting record failed to show basis for Pennsylvania simple assault conviction and declining to address whether that conviction constituted crime of violence under federal sentencing guidelines). It suffices for the purposes of this appeal to conclude that we do not find federal case law persuasive authority with respect to Pennsylvania's RRRI statute.
See Stinson , 592 F.3d at 462 (discussing categorical and modified categorical approaches to determining whether elements of statute meet the definition of "crime of violence.").
The United States Supreme Court, in Johnson v. United States , 576 U.S. ___, 2015 WL 2473450 (June 26, 2015), recently held a substantial similar definition of a "violent felony" as "conduct that presents a serious potential risk of physical injury to another" was unconstitutionally vague. Id. at ___ (striking 18 U.S.C. § 924(e)(2)(B), known as "residual" clause of Armed Career Criminal Act).
In sum, we conclude the fact of a prior conviction for resisting arrest does not per se demonstrate "violent behavior" when determining RRRI eligibility. See 61 Pa.C.S. § 4503(1). It follows that resisting arrest is not a pending "additional charge[ that] would cause the defendant to become ineligible" for a RRRI minimum sentence. See 61 Pa.C.S. § 4503(5). As the Commonwealth's sole objection to Appellant's RRRI eligibility was that resisting arrest was a per se crime of violence, see N.T. Sentencing, at 11-14, we are constrained to reverse the trial court's determination that Appellant was RRRI ineligible.
Judgment of sentence vacated. Case remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.
Judge Panella joins the memorandum.
Judge Olson files a concurring and dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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