Com. v. Leonberger

932 A.2d 218

COMMONWEALTH of Pennsylvania, Appellee v. Albert LEONBERGER, Appellant.

Superior Court of Pennsylvania.

Argued May 2, 2007.

Filed August 27, 2007.

Charissa J. Liller, New Hope, for appellant.

Stephen B. Harris, Asst. Dist. Atty., Doylestown, for the Com., appellee.

BEFORE: TODD, J., McEWEN, P.J.E., and JOHNSON, J.

OPINION BY JOHNSON, J.:

¶ 1 Albert Leonberger appeals from the judgment of sentence entered following his convictions of aggravated harassment by a prisoner, resisting arrest and disorderly conduct. See 18 Pa.C.S. §§ 2703.1, 5104, 5503 (respectively). Leonberger asserts that the evidence was insufficient to establish his convictions of aggravated harassment by a prisoner and resisting arrest. Leonberger also contends that the trial court provided erroneous jury instructions when it charged the jury on the crimes of aggravated harassment by a prisoner and resisting arrest. We conclude that the evidence was insufficient to support Leonberger's conviction of aggravated harassment by a prisoner. We find no merit in any of Leonberger's remaining contentions. Accordingly, we affirm in part, reverse in part and remand for re-sentencing.

¶ 2 On October 16, 2005, Jamie Lynskey awoke around 3:00 a.m. to yelling outside of her house at 20 Rolling Lane, in Levittown, Bucks County. Lynskey looked out her window and saw a jeep parked in the middle of the street and two men in her front yard rolling around on the grass. Lynskey called 911, and Officer Douglas Slemmer of the Bristol Township Police Department arrived shortly thereafter, observing Leonberger and a companion, Wayne Fowler, standing at the rear of a jeep. Officer Slemmer noticed blood on both men and testified that they appeared highly intoxicated and displayed signs of having been in a fight. Officer Slemmer got out of his police cruiser and told Fowler to sit down on the curb. Fowler refused, approached the officer and took two swings at him. In turn, Officer Slemmer took out his pepper spray and backed away from the jeep, repeating his direction that Fowler sit on the curb. Leonberger then walked towards the officer, and while reaching inside his waistband, said "Who are you going to spray? I'm going to fuck you up." Fearing that Leonberger was reaching for a weapon, Officer Slemmer retreated behind his police cruiser, called for backup on his radio, pulled out his service weapon, and ordered Leonberger to take his hand out of his waistband. Leonberger did not comply and continued to approach and curse at the officer.

¶ 3 In an attempt to subdue Leonberger, Officer Slemmer ran up to Leonberger and sprayed him with pepper spray. As a result, Leonberger rubbed his eyes and nose and Officer Slemmer kicked him in the midsection, causing Leonberger to fall to the ground. Leonberger fell on his back and started kicking in the air, hitting Officer Slemmer with one of his feet and forcing him to back away. Leonberger got up on his knees and put his hand back into his waistband, and Officer Slemmer again drew his gun and repeated his warnings to Leonberger. At this time, Officer John Slattery arrived at the scene, ran towards Leonberger and forced him facedown on the road. Leonberger and Officer Slattery wrestled on the ground as the officer tried to handcuff him. Leonberger used leg sweeps, kicking Officer Slattery in the thighs and knocking him to the ground. Officer Slemmer then rejoined the brawl and used his ASP baton to strike Leonberger's arms several times. The two officers finally handcuffed Leonberger and carried him into Officer Slemmer's police cruiser.

¶ 4 Officer Slemmer transported Leonberger to Lower Bucks Hospital so that Leonberger could receive medical treatment for his injuries. Upon arriving at the hospital, Officer Slemmer opened the back door of the police cruiser, whereupon Leonberger began spitting and kicking at the officer. With the help of a fellow officer and hospital staff, Officer Slemmer placed Leonberger, still handcuffed, on a stretcher. As the nurses wheeled Leonberger into the hospital, he repeatedly spat blood at everyone around him. The officers and hospital staff placed a mask over Leonberger's face, fastened restraint straps and gave him a sedative. After Leonberger received treatment for lacerations and a contusion, the police placed him in a police cruiser and transported him to the Bristol Township police headquarters for detention in a holding cell. Since the police arrested Leonberger without a warrant for various felonies and misdemeanors, he was detained in a police lockup for the remainder of the early morning hours and then was taken before a magisterial district judge for a preliminary arraignment.

¶ 5 The criminal complaint charged Leonberger with four counts of aggravated assault, three counts of disorderly conduct, and one count each of aggravated harassment by a prisoner, public drunkenness, terroristic threats and resisting arrest. The case proceeded to a jury trial. At the conclusion of the Commonwealth's case, Leonberger made a motion for demurrer and the trial court dismissed the charge of terroristic threats. The remaining charges went to the jury for deliberation. After being instructed on the elements of the charges, the jury requested that the trial court re-instruct them on the elements of resisting arrest, aggravated assault and aggravated harassment by a prisoner. The jury also requested that the trial court provide them with an explanation of when a person is considered to be "under arrest." The trial court re-instructed the jury and presented them with some general, background law regarding an "arrest" and provided them with the details of one of this Court's previous decisions. On March 29, 2006, the jury found Leonberger guilty of aggravated harassment by prisoner, resisting arrest, public drunkenness and disorderly conduct. The jury found Leonberger not guilty of all four counts of aggravated assault. On April 17, 2006, the trial court sentenced Leonberger to four to twenty-three months' imprisonment along with a concurrent sentence of two years' probation for resisting arrest. The trial court did not impose further sentence on the disorderly conduct and public drunkenness convictions.

¶ 6 Leonberger now appeals to this Court, raising the following questions for our review:

A. Did the Commonwealth present sufficient evidence to support Defendant's conviction for aggravated harassment by prisoner?

B. Did the Commonwealth present sufficient evidence to support Defendant's conviction for resisting arrest?

C. Did the Trial Court erroneously instruct the jury on the charges for aggravated harassment by prisoner and resisting arrest, thereby causing prejudice to Defendant?

Brief for Appellant at 2.

¶ 7 Leonberger's first two questions challenge the sufficiency of the evidence for his convictions of aggravated harassment by a prisoner and resisting arrest.

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014-15 (Pa.Super.2002) (en banc) (internal citations, quotation marks and brackets omitted).

¶ 8 In his first question, Leonberger contends that the Commonwealth failed to establish the requisite elements of the crime of aggravated harassment by a prisoner. Brief for Appellant at 9. Particularly, Leonberger asserts that the language of 18 Pa.C.S. section 2703.1 expressly limits aggravated harassment by a prisoner to situations where the prisoner spits on an officer while "confined or committed" in a statutorily prescribed "facility or institution" or when being transported to or from that "facility or institution." Brief for Appellant at 9. Leonberger claims that he spat at the officers at a local hospital where he was transported following his arrest in a residential neighborhood. Brief for Appellant at 11. Therefore, Leonberger argues, the Commonwealth failed to provide any evidence that he was "confined or committed to any sort of detention facility when the spitting occurred and . . . could not have been in transport to . . . such a facility to which he was detained." Brief for Appellant at 13. Leonberger concludes accordingly that the evidence was insufficient to support his conviction. Brief for Appellant at 13. After review of the facts of this case and the relevant statute, we agree with Leonberger that the Commonwealth failed to proffer sufficient evidence to convict him of aggravated harassment by a prisoner.

¶ 9 The Crimes Code defines aggravated harassment by a prisoner as follows:

A person who is confined in or committed to any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility located in this Commonwealth commits a felony of the third degree if he, while so confined or committed...