Commonwealth v. Lumpkins
| Decision Date | 20 January 1984 |
| Citation | 324 Pa.Super. 8,471 A.2d 96 |
| Parties | COMMONWEALTH of Pennsylvania v. Eugene LUMPKINS, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Nov. 8, 1983.
John A. Halley, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Commonwealth, appellee.
Before CAVANAUGH, CIRILLO and CERCONE, JJ.
The appellant, Eugene Lumpkins, Jr., was charged with three counts of simple assault, [1] two counts of aggravated assault [2] two counts of violating the Uniform Firearms Act [3] and one count each of terroristic threats, [4] unlawful restraint, [5] and resisting arrest or other law enforcement. [6] He was tried on February 23, 1982 before the Honorable Robert E. Dauer and a jury. The following day, the jury returned a verdict of guilty on all counts. Motions for a new trial and in arrest of judgment were subsequently filed and denied and on April 22 1982 the appellant was sentenced to a series of prison terms totalling 7 1/2 to 15 years. This appeal followed.
The appellant raises three questions for our review: 1) Was the evidence sufficient to sustain a conviction for terroristic threats? 2) Was the evidence sufficient to sustain a conviction for resisting arrest? 3) Did the trial court err in allowing a Commonwealth witness, a police officer, to display his gun in front of the jury?
In reviewing challenges to the sufficiency of the evidence, the test is whether, "viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt." Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983).
Commonwealth v. Jackson, --- Pa. Super. ---, ---, 463 A.2d 1036, 1037 (1983); see also: Commonwealth v. Williams, --- Pa. Super. ---, 464 A.2d 411 (1983); Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1983). So viewed, the facts are as follows:
Detectives Robert McCabe and Ronald Freeman of the Pittsburgh Police Department were investigating a murder and had received a tip from an informant that the murder victim had been in contact with a prostitute shortly before his death. Pursuant to this tip, the officers travelled to the Greyhound Bus Terminal in downtown Pittsburgh in the early morning hours of September 19, 1981. There they observed a white female and a black male, later identified as the appellant, talking outside of the bus station. A few moments later, the female left with a white male companion and the appellant left shortly thereafter. The officers, who were in plain clothes, then approached the appellant, identified themselves as police, showed him identification, and informed him that they would like to ask him a few questions. The appellant was not a suspect to the murder.
The appellant, at that point, reached into his coat pocket and pulled out a handgun. A struggle ensued as the officers tried to subdue the appellant. Both detectives were struck and kicked by the appellant. Eventually, the appellant grabbed Officer McCabe by the shirt, spun him around and pointed the gun at his head. Officer Freeman, in the meantime, retreated to a nearby parked car. While holding Officer McCabe hostage, the appellant repeatedly threatened to kill both officers, indicated a desire to take Officer McCabe with him to enable him to escape, and struck and kicked the officer several times. After a short period of time, the appellant suddenly released the officer, turned and ran. The officers gave chase and fired their weapons at the appellant. The appellant was apprehended later that morning.
The appellant alleges that his utterances were the result of a spur-of-the-moment fear for his own safety and that the evidence does not show that he possessed the requisite "intent to terrorize" for a conviction of terroristic threats. The elements of the offense of terroristic threats are: 1) a threat to commit a crime of violence, and; 2) communication of such threat with intent to terrorize or with reckless disregard of the risk of causing such terror. Commonwealth v. Ferrer, 283 Pa. Super. 21, 423 A.2d 423 (1980); see also: Commonwealth v. Speller, --- Pa. Super. ---, 458 A.2d 198 (1983).
In Commonwealth v. Griffin, --- Pa. Super. ---, 456 A.2d 171 (1983), a panel of this Court held that statements under section 2706 of the Crimes Code need not be considered in a vacuum, but rather, should be looked at in light of the surrounding circumstances. Thus, the statement "I ought to kill you," made during the course of a robbery by someone brandishing a gun and kicking the person to whom the statement was made, is sufficient to constitute a threat under 18 Pa.C.S.A. § 2706. Id. at ---, 456 A.2d at 174.
In the present matter, the appellant threatened to kill the police detectives while holding Officer McCabe hostage, pointing the revolver alternately at each of the officers and inflicting bodily injury on Officer McCabe. Clearly, in view of the attendant circumstances, the evidence was sufficient to support a conviction of terroristic threats. We, therefore, find no merit to the appellant's allegation.
The appellant next argues that he could not be convicted of resisting arrest since neither of the officers performed an act which indicated to the appellant that he was being placed in their custody. The appellant was convicted under section 5104 of the Crimes Code which reads as follows:
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.
When the homicide detectives approached the appellant, on the morning of the incident, to question him regarding a murder, they were discharging an authorized duty. The appellant's subsequent actions of drawing his revolver and pointing it at Officers Freeman and McCabe, as well as striking and kicking the officers, created a substantial risk of bodily injury to these public servants. So too, substantial force was needed to overcome the resistance as both officers attempted to subdue the appellant by physical force and even fired their weapons at him as he fled. These events are plainly within the scope of section 5104. Therefore, we reject this claim made by the appellant. Compare : Commonwealth v. Eberhardt, 304 Pa. Super. 222, 450 A.2d 651 (1982) (Where defendant's actions were only an attempt to escape and were not aggressive assertions of physical force against officers, he could not be convicted under 18 Pa.C.S.A. § 5104).
The appellant also contends that the lower court committed reversible error when it permitted Officer McCabe, a witness for the Commonwealth, to display his handgun to the jury. During direct examination, the following exchange occurred between Officer McCabe and Assistant District Attorney Rodney Baxter:
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