Com. v. French

• Decision Date: 20 May 1992
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kathleen FRENCH, Appellee.
• Court: Pennsylvania Supreme Court

Page 175

611 A.2d 175

531 Pa. 42

COMMONWEALTH of Pennsylvania, Appellant, v. Kathleen FRENCH, Appellee.

Supreme Court of Pennsylvania.

Argued Jan. 24, 1992.

Decided May 20, 1992.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., George S. Leone, Philadelphia, for appellant.

John W. Packel, Chief, Appeals Div., Stuart B. Lev, Philadelphia, for cross-appellant.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS, and CAPPY, JJ.

OPINION OF THE COURT

LARSEN, Justice.

At issue in these cross-appeals by allowance is whether the use of force against an arresting officer is ever justified, an issue of first impression in this Court; and whether a new trial is required on grounds that appellee was not permitted to examine pre-trial statements by certain of the Commonwealth's witnesses.

On October 17, 1987, police officer John Welsh was summoned to the scene of an altercation in the Frankford section of Philadelphia. Officer Welsh separated the individuals involved in the fracas, and upon being joined by three other police officers, listened to the participants' respective versions of the incident. The events taking place after the individuals were separated resulted in appellee ¹ being arrested and charged with aggravated assault, simple assault, recklessly endangering another person, resisting arrest, criminal conspiracy and disorderly conduct. ²

At appellee's trial, the Commonwealth's evidence showed that when Officer Welsh arrived at the scene of the altercation, he observed appellee, appellee's sister and her sister's boyfriend as well as appellee's boyfriend beating an individual who was pinned to the ground. Officer Welsh pulled these four individuals away from the person being beaten, a black male, and attempted to determine the cause of the altercation. Appellee and her three companions told the Officer that they had been attacked by a group of young men, including the individual whom they were beating, after appellee shouted at the group to stop harassing a couple at a nearby bus stop. Officer Welsh and the three police officers who had arrived on the scene in the interim were told by the individual being beaten that he was walking along the street on his way to catch a bus when he was attacked by appellee and her three companions; he denied that he was involved in harassment of anyone. The officers determined that the individual did not wish to press charges and allowed him to leave. Appellee and her companions were also ordered to leave. At that point, the four refused to leave and began shouting obscenities at the officers. The boyfriend of appellee's sister then called Officer Welsh a "nigger lover" and punched him in the face. When Officer Welsh returned the punch, he was in turn, punched in the face by appellee's boyfriend. The officers subdued both men and placed them under arrest. Officer Welsh then ordered appellee, who was still shouting obscenities at the officers, to leave or face arrest. Appellee responded with another obscenity and punched Officer Welsh in the face, after which she was arrested. ³

Appellee's testimony at trial differed from the Commonwealth's version of the incident. Appellee testified that she and her three companions were walking along the street when they noticed a group of young males harassing another couple. According to appellee, as a result of her shouting at the group to leave the couple alone, her boyfriend was attacked by the group. Appellee also testified that after Officer Welsh and the other three officers arrived on the scene, they used nightsticks to strike her boyfriend in the ribs and on the back of the head. Appellee stated that one officer had his foot on her boyfriend's throat and was "choking him to death" and that the officers ignored pleas from her sister's boyfriend to stop before they killed appellee's boyfriend. Appellee also testified that "when they [the police] wouldn't stop and I seen him starting to turn colors, I turned around and hit Officer Welsh." The testimony of appellee's co-defendants was consistent with her testimony.

The jury convicted appellee of aggravated assault, resisting arrest and conspiracy. ⁴ Post-trial motions were denied, and appellee was sentenced to a five-year probationary term. On appeal, Superior Court vacated the judgment of sentence and remanded the case for further proceedings. 578 A.2d 1292.

Appellee's first contention is that the trial court's instruction to the jury on the defense of justification was inadequate. The trial court's charge to the jury was as follows.

[I]n this case justification is a defense if the defendant French reasonably believed that her intervention was necessary to protect Moran [appellee's boyfriend] from death or serious bodily injury and that the force used was immediately necessary to protect Moran against the force used by Officer Welsh on the same occasion as Miss French used force. Because the Commonwealth has the burden of disproving the defense of justification, you may find Miss French guilty only if you are satisfied beyond a reasonable doubt either that French did not reasonably believe that her intervention was necessary to protect Moran or that she did not reasonably believe that the force she used was immediately necessary to protect Moran then and there against the force used by Officer Welsh.

N.T. 11/14/88, at 3.130.

Appellee contends that this instruction unfairly limited her justification defense to only those situations in which she reasonably believed that use of force was necessary to protect against serious bodily injury or death. The proper instruction, appellee contends, the one requested by her, would have permitted the jury to find that her use of force against Officer Welsh was justified if she reasonably believed that such force was necessary to protect against any bodily injury. Superior Court, looking to case law in other jurisdictions and to comments from the Model Penal Code, resolved this issue by holding that the trial court's instruction to the jury was proper.

Section 505 of Pennsylvania Crimes Code, which defines the right of self defense, provides, inter alia, that the use of force in self protection is not justified to resist arrest. ⁵ (However, see discussion of Official Comment to § 505(b)(1)(i), infra.) At common law, there existed a right to resist unlawful arrests. Both English and American courts considered the assertion of arbitrary authority as a provocation to resist arrest. See generally Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969). It has been recognized however, that this common law rule is no longer consistent with the needs of modern society, resulting in abrogation of the rule in recent years by numerous jurisdictions, either by judicial decision or by statute. ⁶

Appellee contends that the instant case does not involve the use of force to resist arrest but, rather, involves the use of force to resist excessive force by an arresting officer. It is appellee's position that the use of force by an arresting officer which exceeds the force required to effectuate the arrest amounts to an assault on the arrestee which triggers the right of self defense.

The Commonwealth argues that the prohibition on resisting arrest as set forth in § 505(b)(1)(i) nullifies the right of an arrestee to use force in self defense regardless of the level of force used by the arresting officer. The Commonwealth also argues that an arrestee who is subjected to more force than necessary to effectuate the arrest can sue the arresting officer. That the remedy of a future lawsuit fails to address the exigent nature of a situation in which one's life and limb are in danger, focuses our inquiry on the critical aspect of this issue: while an arrestee's liberty interest can be adequately protected through legal channels when there has been an unlawful arrest, one's bodily integrity is not adequately protected by those same means when an arresting officer uses excessive force. This distinction between resisting an arrest and resisting the use of excessive force by an arresting officer is sufficiently compelling for us to conclude that the use of excessive force by an arresting officer may trigger the right to use force in self protection under § 505 (or, by virtue of § 506, in protection of others) ⁷. In determining the circumstances under which an arrestee may use force against an arresting officer, guidance is provided in the Official Comment to § 505, which states, "Under Subsection (b)(1)(i) the actor may use force if the arresting police officer unlawfully uses or threatens deadly force." ⁸

The Official Comment to § 505 conditions an arrestee's use of force upon the threat or use of force by the arresting officer which is both unlawful and deadly. The Definitions section of Chapter 5 of the Crimes Code defines "deadly force" as "Force which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury." Whether an arresting officer's use of such force is unlawful is determined with reference to § 508 of the Crimes Code, "Use of force in law enforcement." Section 508(a)(1) authorizes the use of deadly force by an arresting officer under the following circumstances:

(a)(1) [An arresting officer] is justified in using deadly force only when he believes ⁹ that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:

(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay (emphasis added).

An arresting officer using deadly force under the above-cited...