J-S69002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH MAYS

Appellant No. 955 EDA 2013

Appeal from the Judgment of Sentence March 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010618-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 23, 2014

Appellant, Joseph Mays, appeals from the judgment of sentence 

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

trial conviction for resisting arrest or other lawful enforcement.1 We affirm. 

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

During the early morning hours of June 17, 2011, Philadelphia Police Officers 

Patrick Biles and Christopher Rommel received a police radio report of a 

shooting at Marlowe and Dyre Streets in Northeast Philadelphia. Shortly 

thereafter, the officers received another report from Officer Christopher 

Lewis, describing a silver Chevrolet SUV that was possibly involved in the 

shooting. Officer Lewis indicated the SUV was traveling northbound on the 

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1 18 Pa.C.S.A. § 5104. 
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4900 block of Frankford Avenue. Officer Lewis also stated, “Use caution. 

They may be armed.” (N.T. Trial, 3/6/13, at 68). At the time of the call, 

Officers Biles and Rommel were traveling westbound on Pratt Street, headed 

toward the intersection with Frankford Avenue. 

At that point, Officers Biles and Rommel observed the SUV execute a 

right-turn into the eastbound lane of Pratt Street. The officers activated the 

lights and sirens on their vehicle and maneuvered into the eastbound lane in 

an attempt to stop the SUV. The SUV avoided a collision with the officers’ 

vehicle by jumping the curb, driving on the sidewalk, and cutting through a 

shopping center parking lot. The officers pursued the SUV for several 

blocks. The back window of the SUV was tinted, and the officer could not 

determine the number of occupants in the vehicle. Additionally, the officers 

heard gunshots during the pursuit, but they could not determine whether 

the shots had originated from the SUV. 

Ultimately, the SUV stopped in an alley. The officers exited their 

patrol car, drew their firearms, and approached the SUV. Officer Rommel 

approached the driver’s side and Officer Biles approached the passenger 

side. The officers yelled at the occupants of the SUV, “Get your hands up. 

Let me see your hands.” (Id. at 44). Specifically, Officer Biles was 

concerned for his safety, as he was unsure whether the occupants were 

armed. Officer Biles looked into the SUV and saw Appellant sitting in the 

passenger seat. Officer Biles commanded Appellant to exit the SUV, but 
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Appellant did not comply. Officer Biles opened the door, grabbed Appellant’s 

shirt, and tried to remove Appellant from the vehicle. Appellant reached out 

and clutched Officer Biles’ wrist. Officer Biles holstered his firearm, 

struggled with Appellant, and took Appellant to the ground. While on the 

ground, Appellant flailed his arms. Ultimately, Officer Biles applied a 

“control hold” to subdue Appellant and place him in handcuffs. (Id. at 104).

Following trial, a jury convicted Appellant of resisting arrest or other 

lawful enforcement. On March 11, 2013, the court sentenced Appellant to 

one (1) to two (2) years’ imprisonment. On March 13, 2013, Appellant 

timely filed a post-sentence motion. In it, Appellant argued the court 

imposed an aggravated range sentence without considering mitigating 

factors.2 Specifically, Appellant alleged he “had no prior record involving 

crimes of violence, as well as strong community and family support.” (PostSentence Motion, filed 3/13/13, at 4-5). The court denied Appellant’s postsentence motion on March 19, 2013. 

Appellant timely filed a notice of appeal on March 26, 2013. On March 

20, 2014, this Court dismissed the appeal due to Appellant’s failure to file a 

brief. Appellant filed an application to reinstate the appeal on March 25, 

2014, which this Court granted on March 31, 2014. On May 25, 2014, 

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2 With a prior record score of five (5) and an offense gravity score of two 

(2), the standard range for Appellant’s resisting arrest or other law 

enforcement conviction was one (1) to nine (9) months, plus or minus three 

(3) months for aggravating or mitigating circumstances. 
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Appellant filed a concise statement of errors complained of on appeal, 

pursuant to Pa.R.A.P. 1925(b). 

Appellant now raises two issues for our review: 

WAS NOT THE EVIDENCE INSUFFICIENT TO ESTABLISH 

APPELLANT’S GUILT AS A MATTER OF LAW, TO THE 

CHARGE OF RESISTING ARREST? 

WAS NOT THE SENTENCE IMPOSED EXCESSIVE AND 

CONSTITUTE[S] AN ABUSE OF DISCRETION, WHERE THE 

COURT FAILED TO LIST THE REASONS FOR AN 

AGGRAVATED SENTENCE AND THE COURT SEEMINGLY 

INTENDED TO PUNISH [APPELLANT] FOR EXERCISING HIS 

RIGHT TO A JURY TRIAL? 

(Appellant’s Brief at 4). 

In his first issue, Appellant contends the Commonwealth’s evidence 

demonstrated he was merely a passenger in a vehicle driven by his codefendant. Appellant asserts the Commonwealth did not produce evidence 

“to suggest that Appellant played any role in the...co-defendant’s actions in 

evading and fleeing from police on June 17, 2011.” (Appellant’s Brief at 10). 

Absent more, Appellant argues the officers did not have probable cause to 

arrest him. On this basis, Appellant concludes the Commonwealth presented

insufficient evidence to support his conviction for resisting arrest or other 

law enforcement. We disagree. 

When examining a challenge to the sufficiency of the evidence, our 

standard of review is: 

[W]hether 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 
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element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

Section 5104 of the Crimes Code defines the offense of resisting arrest 

or other law enforcement 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. 

18 Pa.C.S.A. § 5104 (emphasis added). 

Instantly, the trial court evaluated Appellant’s sufficiency challenge as 

follows: 
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At the time Police Officer Biles approached Appellant on 

the passenger side of the vehicle, he was justified in 

initiating a safety frisk for weapons, a duty as a law 

enforcement officer. While on routine patrol, Officer Biles 

received a radio call at approximately 2:00 a.m. regarding 

gunshots. He subsequently received information leading 

him to encounter the target vehicle and possible suspects. 

During the ensuing vehicle chase, Officer Biles heard 

gunshots of unknown origin. Additionally, Officer Biles 

received a cautionary radio alert that the suspects may be 

armed. The evidence pertaining to the discharge of a 

firearm suggested that Officer Biles had a reasonable 

concern that Appellant may have had a weapon in his 

possession. Accordingly, the jury was warranted in finding 

that effectuating a weapons frisk was a legitimate duty at 

the time Officer Biles approached Appellant. Officer Biles 

stated, “[W]e were yelling at them in loud voices, ‘get your 

hands up, let me see your hands,” for our safety, [to] 

make sure they didn’t have any weapons.” The evidence 

therefore sufficiently established that Appellant intended to 

prevent Officer Biles from performing a weapons frisk by 

grabbing him and initiating a struggle on the ground. 

Appellant seemingly ignores the disjunctive clause 

discharging any other duty of Section 5104, implicitly 

arguing that the lawful arrest clause is a necessary 

element of the offense. The plain reading of the statute 

does not support Appellant’s characterization. 

(See Trial Court Opinion, filed June 13, 2014, at 2-3) (emphasis in original) 

(internal footnote and citations to the record omitted). We agree with the 

court and emphasize that Officer Biles provided particular facts from which 

he reasonably inferred Appellant was armed and dangerous, thereby 

justifying a frisk for weapons. See Commonwealth v. Preacher, 827 A.2d 

1235, 1239 (Pa.Super. 2003) (explaining officer can conduct pat-down of 

suspect’s outer garments for weapons if, during course of valid investigatory 

stop, officer reasonably believes suspect may be armed and dangerous). 
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See also Commonwealth v. Coleman, 19 A.3d 1111 (Pa.Super. 2011) 

(holding sufficient evidence supported defendant’s conviction for resisting 

arrest or other law enforcement where defendant struggled with officer who 

attempted to remove defendant’s hand from pocket; officer received police 

radio call for armed robbery in progress, officer drove to location of robbery 

and observed defendant, who matched description of robber, and defendant 

refused to comply with officer’s request that defendant remove his hand 

from his pocket). Consequently, sufficient evidence supported Appellant’s 

conviction for resisting arrest or other law enforcement. See Hansley, 

supra. 

In his second issue, Appellant contends the sentencing court imposed 

an aggravated range sentence without considering mitigating factors, 

specifically the fact that Appellant’s criminal history included non-violent 

offenses. Appellant concludes the court abused its discretion by imposing an 

excessive sentence. Appellant’s challenge is to the discretionary aspects of 

his sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 

2002) (stating claim that sentence is manifestly excessive challenges 

discretionary aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

sentencing issue: 
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[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Objections to the discretionary aspects of a sentence are generally waived if 

they are not raised at the sentencing hearing or raised in a motion to modify 

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).3 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating a substantial question as to the 

appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 

2119(f). “The requirement that an appellant separately set forth the 

reasons relied upon for allowance of appeal ‘furthers the purpose evident in 

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3

In his statement of issues presented, Appellant mentions that the sentence 

imposed by the court “seemingly intended to punish [Appellant] for 

exercising his right to a jury trial[.]” (Appellant’s Brief at 4). Appellant, 

however, failed to preserve this claim in his post-sentence motion. See 

Mann, supra. 
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the Sentencing Code as a whole of limiting any challenges to the trial court’s 

evaluation of the multitude of factors impinging on the sentencing decision 

to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387 

(Pa.Super. 1989) (en banc) (emphasis in original)). 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra at 912-13. “A substantial question is 

raised where an appellant alleges the sentencing court erred by imposing an 

aggravated range sentence without consideration of mitigating 

circumstances.” Commonwealth v. Hyland, 875 A.2d 1175, 1183 

(Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). 

Instantly, Appellant properly preserved his claim regarding the court’s 

purported error in imposing an aggravated range sentence without 

consideration of mitigating circumstances. As presented, Appellant’s claim 

appears to raise a substantial question as to the discretionary aspects of his 

sentence. See id. 
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Our standard of review concerning the discretionary aspects of 

sentencing is as follows: 

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed 

on appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision. 

Id. at 1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214 

(Pa.Super. 1999) (en banc)). 

“[A] court is required to consider the particular circumstances of the 

offense and the character of the defendant.” Commonwealth v. Griffin, 

804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct. 

2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the 

defendant’s prior criminal record, his age, personal characteristics and his 

potential for rehabilitation.” Id. 

Instantly, the record belies Appellant’s contention that the court failed 

to consider the mitigating factors at issue. Immediately following the 

announcement of the jury’s verdict, Appellant waived his right to a presentence investigation report and proceeded to sentencing. At that time, 

the Commonwealth emphasized Appellant’s extensive criminal history: 

[THE COMMONWEALTH]: Your Honor, the 

Commonwealth is asking for one to two. 

[Appellant]―I guess I’ll―since we don’t have a pre-
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sentence report, I’ll just inform the court―and the court 

can look at his record―it’s extensive. 

[Appellant’s] been convicted of [possession of a controlled 

substance with intent to deliver (“PWID”)] in 2000 

on―one, two, three, four―four separate PWIDs that he 

consolidated in 2000 before Judge Wood-Skipper. He has 

a separate PWID before Judge Hughes in 2003. There’s 

the case that he’s on right now, which is another PWID 

with Judge Bronson, from 2010. Then there is―he has a 

juvenile record. He also has another PWID conviction in 

2000 before Judge Nyfield (ph). Another PWID conviction 

in 2000 before Judge Gehret. He has a PWID conviction in 

2007 before Judge Meehan. 

THE COURT: Are they all separate 

PWIDs? 

[THE COMMONWEALTH]: The 2007 before Judge 

Meehan is actually― 

[DEFENSE COUNSEL]: He consolidated several 

PWIDs. 

[THE COMMONWEALTH]: Two PWIDs and a DUI 

consolidated. 

(See N.T. Trial and Sentencing, 3/11/13, at 32-33.) The Commonwealth 

also detailed Appellant’s history while on probation, which included multiple 

violations. 

Defense counsel, however, requested the court to impose a 

probationary sentence. The court asked defense counsel, “Who gets 

probation when you’ve been convicted ten times or more?” (Id. at 36). 

Defense counsel conceded Appellant had a “major problem with the state 

parole board with this case.” (Id.) Consequently, defense counsel revised 

his request, asking for “a sentence within the guideline range.” (Id.) 
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Thereafter, the court and defense counsel discussed the applicability of 

various aggravating circumstances. At the conclusion of the hearing, the 

court imposed the sentence of one to two years’ imprisonment. 

Despite Appellant’s protests that the court failed to appreciate the 

non-violent nature of his prior offenses, the court emphasized its concerns 

over the volume of crimes Appellant had committed. Significantly, the court 

considered the nature and circumstances of the offense at issue. The court 

also observed Appellant and considered the statements from Appellant’s 

counsel. Under these circumstances, we see no abuse of discretion. See 

Hyland, supra. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014