Com. v. Biagini
| Decision Date | 18 January 1995 |
| Citation | 540 Pa. 22,655 A.2d 492 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Bruce BIAGINI, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. BARRY W. (In the Interest of), Appellee. |
| Court | Pennsylvania Supreme Court |
L. Edward Glass, Glass & Weaver, David J. Weaver, Johnstown, for appellant at No. 6.
Ronald Eisenberg, Deputy Dist. Atty., Norman Gross, Asst. Dist. Atty., for appellant at No. 3.
Wayne B. Gongaware, Asst. Dist. Atty., Jack Christin, Jr., for appellee at No. 6.
Steven C. Scarpa, Philadelphia, for appellee at No. 3.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
These two appeals were consolidated for review by this Court as the Superior Court rendered inconsistent decisions. In each case the Superior Court addressed the question of whether an individual can be convicted for resisting arrest when it is subsequently determined that the underlying arrest was unlawful, as it was not supported by probable cause. In Biagini the Superior Court affirmed the conviction for resisting arrest, and in Barry W. the Superior Court reversed the conviction for resisting arrest.
Additionally, each defendant asserts that his conviction for aggravated assault cannot stand as the assaults occurred while justifiably defending themselves from an illegal arrest. In support of the second issue the defendants rely upon the recent decision of this Court in Commonwealth v. French, 531 Pa. 42, 611 A.2d 175 (1992). 1
For the reasons that follow, this Court holds that a conviction for resisting arrest cannot stand where the underlying arrest is found to be unlawful. We further hold that French did not create a right for an individual to resist what s/he believes to be an unlawful arrest. There is no right to resist arrest.
In the Biagini case the Superior Court overruled the trial court and held that the arrest was unlawful as it was not based upon probable cause. However, it went on to hold that the legality of the arrest was irrelevant to the conviction for resisting arrest and thus, affirmed the conviction. The relevant facts are as follows.
Officer Snyder, while on a routine patrol in a residential neighborhood in North Belle Vernon at 3:00 a.m., heard a disturbance. The disturbance, a loud voice shouting, seemed to emanate from the rear of a home. Upon investigating, the officer observed Biagini stagger out of the alley between the houses, look up and down the street, and stagger back into the alley. The officer drove down the alley and encountered Biagini in the rear yard of his house with an unidentified female. The officer inquired of Biagini as to the disturbance. Biagini initially responded, in a loud voice, that there was no problem and then pointed at two other individuals across the alley. The officer told Biagini to remain where he was and went to investigate the other individuals. Biagini, however, left the yard and went into his home. The other individuals told Officer Snyder that Biagini had been screaming at them from his back yard and threw an object at them which they thought, from the sounds of the impact, to be a glass bottle. The officer returned to speak to Biagini.
As Biagini had left the alley, the officer approached the house and knocked on the door. Biagini responded by screaming at the officer "Who the [expletive] is tearing down my door?" Officer Snyder asked Biagini to come out to the patrol car and answer a few questions. Biagini refused and in vulgar terms ordered the officer off his porch. The officer then told Biagini he was under arrest for public intoxication and disorderly conduct. Biagini refused to comply with the officer's request to come quietly. Biagini shook free of the officer's hold and re-entered his home.
Officer Snyder went back to his patrol car, turned on his flashing lights, called for back-up, and again knocked on Biagini's door. Officer Snyder renewed his request that Biagini accompany him to the patrol car and Biagini renewed his vulgar refusal. The officer attempted to seize Biagini and a scuffle ensued. Officer Snyder was punched in the mouth and Biagini was subdued with the aid of the additional officers who had responded to the back-up call. Biagini was searched and a set of brass knuckles and a small amount of marijuana were found on his person.
At trial Biagini demurred to the evidence arguing that all the charges must be dismissed as the arrest was illegal. The trial court denied the demurrer. Biagini was subsequently convicted, after a non-jury trial, for public drunkenness, disorderly conduct, aggravated assault, resisting arrest, prohibited offensive weapons, and possession of a small amount of marijuana.
In the opinion of the trial court denying Biagini's post-trial motions the court concluded that the arrest was valid:
But after considering all of the credible evidence, it is plain to this Court that the defendant was arrested initially for public drunkenness and disorderly conduct as a result of the defendant's conduct in the presence of the officer. The behavior of the defendant on the porch of his residence, which was directed toward the officer, while the officer was conducting his investigation into a public disturbance that had earlier caught his attention, was sufficient to justify his immediate apprehension.
The Superior Court, in reviewing the same set of facts, determined that the trial court's legal conclusion as to the validity of the arrest was in error. That Court concluded:
Though Biagini's conduct may have been intemperate, unreasonable, or unjustified, here we are unable to conclude that Biagini created any public inconvenience, annoyance or alarm, or recklessly created a risk thereof. 18 Pa.C.S. § 5503.[ 2] No We are also unable to conclude that Snyder had probable cause to arrest Biagini for public drunkenness. While Biagini was allegedly intoxicated in his home and on his porch, it is apparent from the record that he had not "appeared in any public place manifestly under the influence of alcohol to the degree that he [might] endanger himself or other persons or property, or annoy persons in his vicinity." 18 Pa.C.S. § 5505 [ 3] (emphasis supplied).
violent crime had been committed; no reference to a crowd or any inquisitive, uninvolved neighbors appears in the record. Biagini screamed "Who the [expletive] is tearing down my door?" while answering the door, before he knew it was Snyder. Being both vulgar and loud [540 Pa. 28] to a police officer, while in a private residence, does not constitute disorderly conduct. [citation omitted]. What emerges is that Biagini, while allegedly intoxicated, in his home and on his porch was loud and vulgar in telling Snyder he did not want to cooperate with the officer's investigation. This incident lacks "the indicia of disorder characteristic of confrontations with 'the very type of spark the statute so plainly seeks to extinguish before it becomes a flame'." [Commonwealth v.] Beattie, [411 Pa.Super. 177] at 187, 601 A.2d at 302. Since the factual findings do not support the trial court's legal conclusion, we are constrained to conclude that Snyder did not have probable cause to arrest Biagini for disorderly conduct
Commonwealth v. Biagini, 428 Pa.Super. 634, 627 A.2d 199 (1993).
Although the Superior Court agreed with Biagini that Officer Snyder had no probable cause to arrest him, the Court went on to reason that regardless of the legality of the arrest, the conviction for resisting arrest must stand, as Biagini had no right to resist the officer in the "performance of [his] duty." quoting 18 Pa.C.S. § 2702(a)(3). 4
BARRY W.
In the matter of Barry W. the Superior Court reversed the conviction for resisting arrest on the basis that the arrest was unlawful as it occurred in the absence of probable cause. The trial court had adjudicated Barry W. delinquent upon finding him guilty of aggravated assault, simple assault and resisting arrest based upon the following facts.
At approximately 10:00 p.m. on the evening of August 6, 1990, Officer Ashby, while on routine patrol, received a radio report of "a male selling narcotics at 61st Street and Lansdowne." Officer Ashby in a marked police car, in uniform, drove to the location within minutes of receiving the call. The officer observed two black males standing under a ledge. It was a dark night and it was raining hard. As Officer Ashby exited the vehicle, the two men began to run. The officer yelled "stop police" and gave chase. Officer Ashby testified that Barry W. threw an object to the other male that the Officer believed to be drugs. The officer was unable to describe the object, none of the other officers observed anything being thrown, and although both males were immediately apprehended, no drugs or other contraband were discovered.
Just as Officer Ashby began to chase the two males, another police car arrived to assist. Officer Boran from the other vehicle The opinion of the trial court focuses upon the elements of assault and fails to specifically address the legality of the underlying arrest; however, the trial court opinion clearly assumes the legality of the underlying arrest. The appeal had originally been reviewed by a panel of the Superior Court which reversed the trial court decision as to the resisting arrest charge. Reargument en banc was granted and the original panel decision was reaffirmed with two judges dissenting only as to the resisting arrest issue.
joined Officer Ashby in chasing and subsequently subduing Barry W. In the struggle with Barry W., Officer Boran's hand was cut on the mirror of a parked car. As a result of this incident Barry W. was found guilty of simple assault, aggravated assault and resisting arrest and adjudicated delinquent.
After reviewing the totality of the circumstances surrounding the arrest of Barry W., the Superior Court concluded...
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