Commonwealth v. Miller

• Decision Date: 27 August 1982
• Citation: 450 A.2d 40,303 Pa.Super. 504
• Parties: COMMONWEALTH of Pennsylvania v. Cedrioue Omar MILLER, Appellant.
• Court: Pennsylvania Superior Court

450 A.2d 40

303 Pa.Super. 504

COMMONWEALTH of Pennsylvania v. Cedrioue Omar MILLER, Appellant.

Superior Court of Pennsylvania.

August 27, 1982

Submitted Sept. 9, 1981.

Gary S. Fronheiser, Asst. Public Defender Reading, for appellant.

George Yatron, Dist. Atty., Reading, for Commonwealth appellee.

Before HESTER, CIRILLO and McEWEN, JJ.

CIRILLO Judge:

Appellant Cedrique O. Miller, ^[1] was convicted in a jury trial of resisting arrest. ^[2] Appellant filed motions for new trial and in arrest of judgment which were denied. He was then sentenced to a term of imprisonment of nine months to two years. This appeal followed.

Appellant asserts that 1) the evidence was insufficient, as a matter of law, to sustain a conviction, 2) the verdict was contrary to the weight of the evidence and 3) the trial court erred in denying defense counsel's motion for a mistrial when the Commonwealth introduced evidence of appellant's parole violations. Appellant's contentions are without merit and we, therefore, affirm.

In appraising the sufficiency of the evidence, we must apply a two-part test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the factfinder could properly have based its verdict; then we must ask whether that evidence with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

The record so viewed, establishes that on March 20, 1980, at approximately 1:15 p.m., two Pennsylvania state parole officers were "tipped off" by the West Reading Borough Police that appellant, a parolee, was living in a West Reading motel. Appellant was required, as a condition of parole, to notify his parole officer of any change in his address, failure to do so constituted a parole violation. Appellant had given his parole officer another address in Reading as his place of residence.

Upon receiving the tip as to appellant's whereabouts, the parole officers proceeded to the motel, where they were advised that the room in question was registered under the name of "Mike Peoples." One of the staff of the motel admitted the officers to the room. Upon entering the room, the officers noticed appellant sleeping and noted several parole violations ^[3] around the room. Appellant was advised that he was under arrest for violation of parole and was told to get dressed. After dressing, appellant "bolted" from the room and got 20 feet outside, only to run into a local police officer coming into the motel. The police officer attempted to restrain appellant but it took the combined efforts of two police officers and the two parole officers to subdue him and take him into custody.

Appellant first contends that the evidence was insufficient to sustain a conviction. Specifically, appellant argues that to be guilty of resisting arrest there must be a "lawful arrest" and here the arrest was illegal because it was made without an arrest warrant.

The offense of Resisting Arrest or other law enforcement is defined 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 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. (emphasis added)

Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S.A. § 5104.

It is well-settled law that it is for the trial court and not the jury to determine whether the arrest was lawful. Commonwealth v. Franklin, 248 Pa. Super. 145, 374 A.2d 1360 (1977). The lower court was correct in its conclusion that the arrest by the parole officer was lawful. When performing his normal duties, a parole agent is not required to obtain a search warrant. Commonwealth v. Brown, 240 Pa. Super. 190, 361 A.2d 846, 850 (1976). A parole officer has the authority to arrest parolees without a warrant for visible violations of parole. Commonwealth v. Pincavitch, 206 Pa. Super. 539, 214 A.2d 280 (1965). This authority is provided by Section 331.27, Parole Officers as peace officers; powers, which states:

Parole officers appointed by the board are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest without a warrant, writ, rule or process any parolee or probationer under the supervision of the board for failing to report as required by the terms of his probation or parole, or for any other violation thereof.

Act of August 6, 1941, P.L. 861, § 27, 61 P.S. § 331.27. Reviewing the evidence in light of the applicable law, we find it is sufficient to sustain appellant's conviction.

Appellant's second contention is that the verdict was against the weight of the evidence. It is settled that a new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. Antolik v. Kerstetter, 278 Pa. Super. 55, 419 A.2d 1353 (1980). The decision to grant or deny a new trial on this ground lies within the sound discretion of the trial judge. Junk v. East End Fire Dept., 262 Pa. Super. 473, 396 A.2d 1269 (1973), and will be reversed only if he acts capriciously or palpably abuses his discretion. Antolik, supra. In the instant case, the evidence was overwhelming as to appellant's guilt on the charge of resisting arrest. The uncontested testimony showed that when appellant bolted from the motel room, it took two parole officers to restrain him and take him into custody. Based on the above, it is clear that the jury's verdict of guilty was not so contrary to the evidence as to shock the court's conscience. Therefore, we find that the trial judge did not abuse its discretion in refusing to grant a new trial on the ground that the jury's verdict was against the weight of the evidence.

Appellant's third and final contention is that the lower court committed reversible error in refusing to declare a mistrial when the Commonwealth brought forth evidence of appellant's parole violations. Specifically, appellant argues that this was tantamount to informing the jury that appellant had a prior criminal record and this was highly prejudicial.

It is well settled that the admission and exclusion of evidence is a matter within the sound discretion of the trial judge. Commonwealth v. Krajci, 283 Pa. Super. 488, 424 A.2d 914 (1981). Accordingly, reversal by an appellate court is inappropriate unless the judge's ruling on such matters amounts to an abuse of discretion. ^[4] Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980).

The general rule concerning the admissibility of prior convictions is set forth in Commonwealth v. Stokes, 279 Pa. Super. 361, 371-372, 421 A.2d 240, 245 (1980):

It is well-established that evidence of other criminal activity generally is inadmissible against a defendant at his trial on another charge. The reason behind this rule is that the Commonwealth should probe beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, without stripping him of the presumption of innocence by proving that he has committed other criminal acts. However, when such evidence is offered to prove matters other than criminal activity, the trial judge, in his discretion may admit it.

We have noted in the past that our cases have not established a per se rule requiring a new trial for every prejudicial reference of this type. The prejudicial effect of the reference may be overcome by cautionary instructions or an appellate court may find that any error was harmless. (citations omitted)

Another exception to the above rule of exclusion was stated in Commonwealth v. Stevens, 237 Pa. Super. 457, 463, 352 A.2d 509, 512 (1975):

There are however, other purposes for which evidence of separate criminal acts may be offered, and when so offered the rule of exclusion is not applicable. One of these purposes is to complete the story of the crime for which the accused is being tried by proving the immediate context of events. This is often classified as proving a part of the "same transaction" or the "res gestae." The Pennsylvania Supreme Court recently discussed this exception, stating that such evidence is admissible where " 'such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.' " (citations omitted) (emphasis added).

In order to prove the charge against appellant of resisting arrest, the Commonwealth had to prove among other things, that appellant was being "lawfully arrested." In establishing that a "lawful arrest" was taking place, the Commonwealth properly showed appellant was being arrested by two parole officers for violations of parole. The evidence was offered for the limited purpose of demonstrating the circumstances surrounding the arrest and to place the offense charged in context. Appellant would have this element of the offense tried in a vacuum and without furnishing an explanation as to who the arresting officers were and the reasons for the arrest. In considering a charge of resisting arrest, the factfinder has a right to know the reason for which appellant is being arrested. See Commonwealth v Markle, 245 Pa. Super. 108, 369 A.2d 317 (1976) (court held it was proper on an indictment for escape to permit the Commonwealth to present evidence that appellant was being held for a felony at the time of the escape). In the instant case, the Commonwealth did not attempt to...