J-S45023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMIL DABNEY

Appellant No. 1447 EDA 2016

Appeal from the Judgment of Sentence January 11, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000988-2015

 CP-51-CR-0000989-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J. FILED AUGUST 14, 2017

Appellant, Jamil Dabney, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his 

convictions for possession with intent to deliver (“PWID”), recklessly 

endangering another person (“REAP”), and resisting arrest.1 We affirm.

The relevant facts and procedural history of this case are as follows. 

On November 18, 2014, two on-duty Philadelphia police officers in a marked 

squad car observed Appellant engage in a hand-to-hand drug transaction. 

The officers attempted to apprehend Appellant, but were unsuccessful. 

About an hour later, the officers again spotted Appellant near the same 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, and 5104, respectively. 
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corner. Appellant appeared to engage in another hand-to-hand drug 

transaction. 

Officer Lewis exited the squad car and chased Appellant on foot, while 

Officer James attempted to follow in the car. Officer Lewis tackled Appellant 

in a nearby alley. Appellant fumbled with the waistband of his pants, and 

ignored Officer Lewis’s commands to show his hands. Appellant then reached 

toward Officer Lewis’s chest and pulled his police radio off. Appellant 

grabbed Officer Lewis by the neck and began applying pressure. Officer 

Lewis struck Appellant in the head with his elbow several times until 

Appellant released the officer’s neck. Appellant then stood and tried to flee.

Officer James approached Officer Lewis and Appellant on foot, and 

assisted Officer Lewis in putting Appellant in handcuffs. The officers 

recovered two crushed vials of phencyclidine, commonly called PCP, from the 

ground where Officer Lewis had tackled Appellant. 

Appellant was charged with PWID, possession of a controlled

substance, aggravated assault, simple assault, REAP, and resisting arrest. 

Appellant filed a pretrial motion to quash based on the Commonwealth’s 

alleged failure to make out a prima facie case; the trial court denied 

Appellant’s motion. Appellant then filed a motion to suppress the drugs 

recovered from the scene of his arrest, claiming the officers had no 

reasonable suspicion or probable cause to stop Appellant. The trial court also 

denied that motion, and Appellant proceeded to a bench trial. The court 
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convicted Appellant of PWID, REAP, and resisting arrest, and determined 

Appellant was not guilty of the other charged offenses.

The court sentenced Appellant to fifteen to thirty months’ incarceration 

on the PWID conviction, plus an aggregate 4 years’ probation on the REAP 

and resisting arrest convictions. Appellant timely filed a post-sentence 

motion challenging the sufficiency of the evidence supporting each of his 

convictions. The court denied the motion. Appellant appealed. 

In his first issue, Appellant challenges the sufficiency of the evidence 

supporting his conviction for resisting arrest. He claims the Commonwealth 

failed to present evidence demonstrating his brief struggle with Officer Lewis 

did not constitute resisting arrest, as Appellant did not create a substantial 

risk of injury to either officer. Appellant contends contact between officers 

and arrestees should be viewed on a continuum, with only the most serious 

cases violating the statute. Appellant insists his conduct was comparatively 

“mild” and thus does not qualify as resisting arrest. We disagree. 

In reviewing a challenge to the sufficiency of the evidence, we 

evaluate the record “in the light most favorable to the verdict winner giving 

the prosecution the benefit of all reasonable inferences to be drawn from the 

evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009) 

(citation omitted).

Evidence will be deemed sufficient to support the verdict when it 

established each element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty, and may sustain its burden by means of 
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wholly circumstantial evidence. Significantly, [we] may not 

substitute [our] judgment for that of the factfinder; if the record 

contains support for the convictions they may not be disturbed.

Any doubt about the defendant’s guilt is to be resolved by the 

factfinder unless the evidence is so weak and inconclusive that, 

as a matter of law, no probability of fact can be drawn from the 

combined circumstances. 

Id. (citations and quotation marks omitted; brackets in original).

The Pennsylvania Crimes Code defines resisting arrest as follows:

§ 5104. Resisting arrest or other law enforcement

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.

“In order for a person to be guilty of resisting arrest, there must first 

have been a lawful arrest.” Commonwealth v. Stevenson, 894 A.2d 759, 

775 (Pa. Super. 2006) (emphasis in original; citation omitted). Bodily injury 

is the impairment of a physical condition or substantial pain. See 18 

Pa.C.S.A. § 2301. 

A minor scuffle is insufficient to support a conviction for resisting 

arrest. See, e.g., Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa. 

Super. 1981) (holding that simply trying to escape from officer’s grip did not 

meet requirements for resisting arrest). However, more violent forms of 

struggling, such as kicking or hitting an arresting officer, constitute resisting 

arrest. See, e.g., Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. 

Super. 2011); Stevenson, 894 A.2d at 775. The Commonwealth, however, 
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need not prove that an officer was actually injured by the defendant’s 

conduct; merely that the defendant created a risk that the officer could be 

injured. See Commonwealth v. Jackson, 907 A.2d 540, 546 (Pa. Super. 

2006).

We find that the Commonwealth met its burden in presenting sufficient 

evidence to convict Appellant of resisting arrest. The officers had probable 

cause to lawfully arrest Appellant based on the two hand-to-hand drug 

transactions they witnessed. Appellant did not merely attempt to run from 

the police or to escape Officer Lewis’s grasp, but instead took the 

affirmative, violent step of grabbing Officer Lewis by his neck. Though 

Officer Lewis was not actually injured by Appellant’s action, the 

Commonwealth need not prove that Appellant inflicted injury, only that he 

created a risk that he could have done so, which is certainly the case here. 

Consequently, this issue merits no relief.

In his second issue, Appellant challenges the sufficiency of the 

evidence to support his conviction for REAP. Appellant contends he did not 

put Officer Lewis in actual danger of death or serious bodily injury, since 

Officer Lewis said that Appellant’s hands on his neck did not obstruct his 

breathing. Appellant also avers the evidence does not demonstrate that he 

consciously disregarded a known risk of serious bodily injury. We disagree.

To establish REAP, the Commonwealth must show that a person 

recklessly engaged in conduct which placed or may have placed “another 

person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The 
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Commonwealth is required to show that the defendant “consciously 

disregarded” the risk of death or serious bodily injury. Commonwealth v. 

Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003). “Serious bodily injury” is 

that which creates “a substantial risk of death or which causes serious, 

permanent disfigurement, or protracted loss or impairment of the function of 

any bodily member or organ.” 18 Pa.C.S.A. § 2301. A REAP conviction will 

be sustained where the circumstances show that Appellant “had an actual 

present ability to inflict harm and not merely the apparent ability to do so.” 

Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. 2006) (citation 

omitted). 

As mentioned, Appellant placed his hands around Officer Lewis’s neck 

and applied pressure. By doing so, Appellant consciously disregarded the risk 

that he could obstruct Officer Lewis’s breathing and thereby seriously injure 

the officer. Though Appellant did not actually harm Officer Lewis, the statute 

requires only that Appellant engaged in conduct that may have placed 

Officer Lewis in danger of death or serious bodily injury. Appellant’s 

placement of his hands around Officer Lewis’s neck created that very risk. 

Appellant had the actual, present ability to inflict harm on the officer when 

Appellant choked him. He is entitled to no relief on this claim. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/2017