What constitutes “substantial force to overcome the resistance” under Pennsylvania’s Resisting Arrest law?
Commonwealth v. Crosby, 2023 WL 3319389 (Pa. Super.)(unreported), allocatur granted Nov. 20, 2023, appeal docket 30 WAP 2023
In this case, the Pennsylvania Supreme Court will consider what constitutes “substantial force to overcome the resistance” as used in Section 5104 of the Pennsylvania Crimes Code, which defines “resisting arrest or law enforcement” as:
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.
The trial court summarized the relevant factual background as follows:
On May 8, 2020, at 6:04 p.m., the Frazier Police Department received a 9-1-1 dispatch call for a rollover vehicle accident. Sergeant Aaron Scott and Officer Samuel Greco responded to the accident. … Sergeant Scott testified that upon arrival, he observed a black Ford Fusion overturned in a grassy patch beyond the curb. [Appellant Jarren Crosby] and LeAnn Evans were outside of the vehicle, and [ ] Evans was talking on a cellular telephone. Sergeant Scott asked who was operating the vehicle, and [Appellant] stated that he was [the operator]. Sergeant Scott then asked if there were any injuries, to which [Appellant] stated he had some back soreness. Neither [Appellant] or [ ] Evans would provide the officers with identification or their name.
While speaking with [Appellant], Sergeant Scott noticed that he had bloodshot and glassy eyes and there was an odor of marijuana emanating from [Appellant] and the [Ford] Fusion. Officer Greco testified that [Appellant] appeared “to be under the influence of some sort of drug or controlled substance.”
***
Due to the accident, and [the officer’s] physical observations, Sergeant Scott and Officer Greco advised [Appellant] and Evans that they were going to be detained while they investigated [Appellant for driving under the influence (“DUI”)]. At that time, Officer Greco testified that [Appellant] became “very angry at [the officer’s] questions to identify himself and he refused to sit back down on the curb.” Officer Greco then began to place [Appellant] in handcuffs. After Officer Greco had one arm into a handcuff, [Appellant] refused to cooperate and began to scream and pull away. … Officer Greco then put [Appellant] onto the ground in a continued effort to put [Appellant] into handcuffs, and [Appellant] continued his resistance. Ultimately, [Appellant] provided Officer Greco with his arm after use of a “dry stun” from Officer Greco’s [T]aser.
[Appellant] did not participate in any standardized field sobriety tests and he refused to submit to a blood draw.
Slip op. at 1-2, quoting Trial Court Opinion, 4/26/22, at 4-6. The arresting officer testified regarding the specific circumstances of Crosby’s arrest that:
I was able to get one arm into a handcuff. As soon as I put hands on him, he started to scream and pull away from me. It sounded like he was screaming at somebody on the phone because he was hard to talk to. I attempted to get his other hand into the handcuff, and it was not going well, so I took it upon myself to take him to the ground and then still try to get the handcuffs on him. He refused to give me his other hand, at which point I pulled my Taser out, pulled the cartridge out and did a dry stun close to his ear as a use of force, saying “[g]ive me your hand now,” at which point he complied and gave me his hand, and I was able to place him into custody.
Slip op. at 9. Crosby was charged and convicted of a number of offenses, including one count of resisting arrest. Crosby appealed to Superior Court arguing, inter alia, that the Commonwealth failed to prove that Crosby created a substantial risk of bodily injury to the police officers to support Crosby’s resisting arrest conviction.
Superior Court held that the Commonwealth presented sufficient evidence that “even though the altercation may not have created a risk of substantial injury to Officer Greco or others, Officer Greco needed to employ ‘substantial force to overcome [Appellant’s] resistance’ and effectuate an arrest.” Slip op. at 10, quoting 18. Pa.C.S.A. § 5104. The court concluded:
Contrary to Appellant’s claims, such testimony is sufficient to sustain a conviction for resisting arrest. See Thompson, 922 A.2d at 928 (“Appellant’s argument completely ignores the statutory language of [S]ection 5104 criminalizing resistance behavior that requires substantial force to surmount.”); see also Commonwealth v. Clark, 761 A.2d 190, 193 (Pa. Super. 2000) (sustaining the appellant’s conviction for resisting arrest when the evidence demonstrated that the appellant “took a fighting stance, the officer had to pepper spray [him], and then chase him down traffic lanes before apprehending him”). In light of the foregoing, we conclude that the Commonwealth presented sufficient evidence to support the conviction of resisting arrest.
Slip op. at 10.
The Pennsylvania Supreme Court granted allocatur to consider the following issue:
In an issue of substantial public importance and first impression with this Honorable Court, what constitutes “substantial force to overcome the resistance” under the Resisting Arrest statute, because the Superior Court’s decisions interpreting this language are manifestly inconsistent and unpredictable?
For more information, contact Kevin McKeon or Dennis Whitaker.