Com. v. Schlier, E.

J-A19002-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ERIC MARTIN SCHLIER :

:

Appellant : No. 206 EDA 2020

Appeal from the Judgment of Sentence Entered November 7, 2019

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0000786-2016

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 07, 2020

Eric Martin Schlier appeals from the judgment of sentence entered in

the Carbon County Court of Common Pleas after a jury found him guilty of

resisting arrest, see 18 Pa.C.S.A. § 5104. On appeal, Schlier asserts the

evidence was insufficient to establish that he resisted arrest. After a thorough

review of the record, we affirm.

Officer Bruce Broyles of the Lehighton Police Department charged

Schlier with aggravated assault, resisting arrest, disorderly conduct, driving

under the influence (“DUI”) - general impairment, two summary traffic

offenses, and escape, after observing Schlier riding his bicycle at night without

proper lighting and ignoring a stop sign.

On February 7, 2019 and February 8, 2019, a jury trial was held. A

review of the parties’ briefs reveals broad agreement on the evidence

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presented at trial; the dispute on appeal centers on the legal consequences of

the evidence.

At trial, Officer Broyles testified that he was patrolling in his cruiser when

he saw Schlier riding his bicycle without proper lighting as he rode through an

intersection without obeying the stop sign at the intersection. Schlier did not

comply when Officer Broyles attempted to stop him, instead claiming he would

stop in a parking lot at the end of the bridge he was on.

However, Officer Broyles testified that once Schlier reached the parking

lot, he did not stop. Rather, Schlier began to accelerate away from the officer.

Officer Broyles maneuvered his cruiser to block Schlier’s exit, and Schlier rode

his bike into it.

After Schlier cursed at him, Officer Broyles instructed Schlier to turn

around and prepare to be handcuffed. Officer Broyles testified that Schlier

would not comply, and ultimately, a scuffle broke out. As Officer Broyles was

placing handcuffs on Schlier, Schlier pulled away and began kicking and flailing

at Officer Broyles. Officer Broyles was forced to call for backup, and then

placed Schlier over the hood of his cruiser in an attempt to subdue him.

Once Schlier was on the hood of the cruiser, Officer Broyles testified that

he was able to finish placing the handcuffs on Schlier. However, even

handcuffed, Schlier continued to struggle. After Schlier kicked his shin hard

enough to leave a bruise, Officer Broyles stated that he took Schlier to the

ground, where he restrained him until backup arrived.

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During the trial, Schlier made an oral motion for judgment of acquittal

on the charges of aggravated assault, resisting arrest, and escape. The trial

court granted the motion in part, entering a judgment of acquittal on the

charge of escape, and denied the motion as to the other charges.

At the conclusion of the trial, the jury acquitted Schlier of aggravated

assault, disorderly conduct, and DUI, but convicted Schlier of resisting arrest.

Additionally, the trial court found Schlier guilty of the two summary traffic

offenses.

Schlier filed a motion for arrest of judgment in which he argued that

because he was found not guilty of all charges except the summary offenses

and resisting arrest, the underlying arrest was unlawful on the basis of the

summary offenses alone. He claimed, as a result, that the Commonwealth

could not prove every element of the resisting arrest charge. After a hearing

was held on the motion, the trial court denied the motion, finding the evidence

was sufficient to sustain Schlier’s conviction for resisting arrest.

On November 7, 2019, Schlier was sentenced to two to twenty-four

months’ incarceration. This timely appeal followed.

Schlier’s sole challenge on appeal is to the sufficiency of the evidence

underlying his conviction for resisting arrest. Specifically, Schlier argues the

evidence was insufficient to support his resisting arrest conviction because his

underlying arrest for escape was unlawful.

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“We review claims regarding the sufficiency of the evidence by

considering whether, viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations

omitted). “Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Id. “In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder.” Id.

Schlier’s conviction required the Commonwealth to present evidence

that he created a substantial risk of bodily injury with the intent of preventing

Officer Broyles from arresting him:

§ 5104. Resisting arrest or other law enforcement

A person commits a misdemeanor of the second degree if, with

the intent of preventing a public servant from effecting a lawful

arrest or discharging any other duty, the person creates a

substantial risk of bodily injury to the public servant or anyone

else, or employs means justifying or requiring substantial force to

overcome the resistance.

18 Pa.C.S.A. § 5104.

Schlier argues the Commonwealth failed to establish he prevented

Officer Broyles from effecting a lawful arrest or discharging any other duty.

Specifically, he first claims Officer Broyles was not effecting a lawful arrest

because he lacked probable cause to arrest Schlier for escape. He further

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asserts Officer Broyles was not “discharging any other duty” because, as

Schlier contends, Officer Broyles was not taking any steps to issue a summary

traffic citation at the time, and it was not his intent to do so. Schlier does not

contest the sufficiency of the evidence to establish that he created a

substantial risk of injury to Officer Broyles.

Despite Schlier’s claims to the contrary, the resisting arrest statute does

not require that an officer intended to make an arrest for the provisions to

apply; it requires only that a party act with “the intent of preventing ... a

lawful arrest.” 18 Pa.C.S.A. § 5104. Therefore, our courts have found sufficient

evidence to support a resisting arrest conviction in a variety of pre-arrest

situations, even where the police detained the defendant merely for the

purpose of issuing a citation. See Commonwealth v. Miller, 475 A.2d 145,

147 (Pa. Super. 1984) (finding sufficient evidence to support a resisting arrest

conviction where officers only intended to issue a citation to the defendant,

but the defendant forcefully resisted the detention).

Here, Schlier concedes that Officer Broyles could have issued a citation

for a violation of the Motor Vehicle Code (“MVC”) if he chose to do so. See

Appellant's Brief, at 10. While he contends that Officer Broyles lacked probable

cause to arrest him for the escape or DUI charges, that is ultimately irrelevant.

Schlier’s subsequent actions of continuing to ride away while Officer Broyles

attempted to effectuate a traffic stop, disobeying orders, fleeing on his bike,

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and struggling with the officers can be properly categorized as actions made

with “the intent of preventing ... a lawful arrest.” 18 Pa.C.S.A. § 5104.

Also, we find there was sufficient evidence that Schlier prevented the

officer from “discharging any other duty.” As this Court has explained, “[t]he

provisions of 18 Pa.C.S.A. § 5104 are clearly disjunctive.” Commonwealth

v. Karl, 476 A.2d 908, 911 (Pa. Super. 1984). “To be convicted under the

first provision of § 5104,” we have held, “it is essential that there be a lawful

arrest.” Id. (citation omitted). However, even where the parties agree that

there was no basis for a lawful arrest, § 5104 also provides that an individual

may be convicted of resisting arrest where the individual prevents a public

servant from “discharging any other duty.” Id. This provision

covers physical interference in a host of circumstances in which

public servants discharge legal duties other than arrest. These

include, for example, a policeman executing a search warrant, a

fireman putting out a blaze, a forest or agricultural official making

required inspections, an election official charged with monitoring

balloting, and the like.

Id. (citation and emphasis omitted). In contrast, a mere investigatory motive

does not qualify a stop as a discharge of a public duty under § 5104. See id.

Our review of the record reveals that Officer Broyles witnessed Schlier

commit multiple traffic violations. Therefore, when Officer Broyles attempted

to pull Schlier over, he was clearly “discharging [his] duty” of initiating a traffic

stop to issue a citation to Schlier for these violations. See N.T., 2/7/2019, at

77 (“I had verbally told him to stop. He was in detention, a lawful detention

at that point for a traffic stop”). Officer Broyles’s observations were sufficient

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to issue the citations without further investigation. See Commonwealth v.

Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015). Schlier’s subsequent decision

to not stop his bike and struggle with Officer Broyles prevented Officer Broyles

from “discharging [his] duty” of enforcing the MVC.

The record therefore reflects the Commonwealth presented sufficient

evidence to establish Schlier, “with the intent of preventing a public servant

from ... discharging any other duty,” created a “substantial risk of bodily injury

to the public servant or anyone else, or employs means justifying or requiring

substantial force to overcome the resistance.” 18 Pa.C.S.A. § 5104.

Accordingly, we cannot grant Schlier relief on his challenge to the sufficiency

of the evidence underlying his conviction of resisting arrest.

We find the Commonwealth presented sufficient evidence to support

Schlier’s conviction for resisting arrest under § 5104.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/7/2020

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