J-A25027-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

JERMAINE MOORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2603 EDA 2016

Appeal from the Judgment of Sentence July 18, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002339-2016

BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2017

Appellant, Jermaine Moore, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County, which, sitting 

as finder of fact at Appellant’s bench trial, found him guilty of Resisting Arrest, 

18 Pa.C.S. § 5104, infra. Sentenced to six to twelve months’ incarceration 

plus one year’s reporting probation, Appellant challenges the sufficiency of the 

evidence supporting his conviction. For its part, the Commonwealth 

recommends that this Court vacate judgment of sentence, as it concedes the 

evidence failed to establish a necessary element of the resisting arrest offense. 

We reverse. 

The issue before us arises from an incident occurring on the afternoon 

of January 16, 2016, inside the concourse at Philadelphia’s Suburban Station. 

At approximately 3:45 p.m., a SEPTA Police Officer believed he saw Appellant
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and a woman exchange money for an unknown object on stairwell leading to 

the street level. Suspecting a drug purchase was in progress, the officer 

stopped Appellant and asked him for identification. When Appellant said he 

did not carry any, the officer commenced a weapons frisk. 

At that point, the officer placed a handcuff on Appellant’s wrist to better

contain him during the frisk, but Appellant broke free and ran. The officer 

pursued and eventually grabbed Appellant, who began spinning and flailing 

his arms wildly, striking the officer in the head. The officer would later testify 

at Appellant’s bench trial that he was unsure whether Appellant was trying to 

land a blow or just spin out of his coat, and he admitted his hood had covered 

his eyes when he felt the blow to his head. N.T. 7/6/16 at 14. Eventually, 

the officer pepper sprayed Appellant, handcuffed him, and completed the frisk, 

finding no weapons, drugs, or money on Appellant’s person.

Appellant was charged with Aggravated Assault, Simple Assault, and 

Resisting Arrest. On July 6, 2016, Appellant proceeded to a non-jury trial and 

was found guilty of resisting arrest. With the agreement of the 

Commonwealth, the court granted judgment of acquittal on the assault 

charges. On July 18, 2016, the court imposed sentence, as noted above. This 

timely appeal followed.

Appellant presents the following question for our review:

WAS NOT APPELLANT ERRONEOUSLY CONVICTED OF 

RESISTING ARREST, 18 PA.C.S.A. § 5104, AS THE 

COMMONWEALTH FAILED TO PROVE AN ESSENTIAL 

ELEMENT OF THAT OFFENSE, NAMELY, THAT THE 

UNDERLYING ARREST WAS LAWFUL, AND APPELLANT’S 
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MERELY EVASIVE CONDUCT DID NOT FALL WITHIN THE 

AMBIT OF THE STATUTE?

Brief of Appellant at 3.

Our standard of review for a sufficiency of the evidence challenge is wellestablished:

A claim challenging the sufficiency of the evidence presents a 

question of law. We must determine whether the evidence is 

sufficient to prove every element of the crime beyond a 

reasonable doubt. We must view evidence in the light most 

favorable to the Commonwealth as the verdict winner, and accept 

as true all evidence and all reasonable inferences therefrom upon 

which, if believed, the fact finder properly could have based its 

verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017) 

(citation omitted).

Pursuant to Section 5104 of the Crimes Code, Resisting Arrest: 

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.

Appellant contends the evidence was insufficient to support his Resisting 

Arrest conviction where the Commonwealth failed to prove that his underlying 

arrest against which he resisted was lawful. We agree. 

When the officer first frisked and handcuffed Appellant, he did so without 

possessing either probable cause to support an arrest on drug charges or 

reasonable grounds to belief Appellant possessed a weapon. Specifically, at 
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Appellant’s trial, the officer admitted that Appellant and the woman exchanged 

what “could have been anything” that afternoon at the train station, N.T. at 

20, and there was no testimony that either secreted the objects in a suspicious 

manner. The officer was unable to discern “who was exchanging what” and 

conceded on cross-examination that it could have been a stick of gum. N.T.

at 12. Nor was there testimony that the exchange took place in a known high 

drug-crime setting or that the officer had specialized training or experience 

that allowed him to reasonably conclude he had probably witnessed a drug 

transaction. Compare Commonwealth v. Thompson, 985 A.2d 928 (Pa. 

2009) (holding probable cause existed to support warrantless arrest and 

search where specifically-trained and experienced narcotics officer observed 

exchange of money for unknown object, without any other suspicious 

behavior, in area he knew to be a high drug-crime area). 

Likewise, evidence was lacking to support a weapons frisk, as the officer 

failed to articulate any particularized reason to believe Appellant possessed a 

weapon or posed a danger to the officer. See Commonwealth v. Preacher,

827 A.2d 1235, 1239 (Pa.Super. 2003) (explaining officer can conduct patdown of suspect's outer garments for weapons if, during course of valid 

investigatory stop, officer reasonably believes suspect may be armed and 

dangerous). 

On this issue, the Commonwealth concurs with Appellant that his

resisting arrest conviction must be vacated under circumstances invalidating 

Appellant’s arrest. Finding no basis to support the lower court’s finding that 
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Appellant’s underlying arrest was lawful, we agree with Appellant and the 

Commonwealth that vacating judgment of sentence is required.1

Judgment of sentence is reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2017

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1

In its Pa.R.A.P. 1925(a) Opinion, the trial court asks this Court to affirm 

judgment of sentence on precedent that an unlawful arrest does not excuse 

an assault upon an arresting officer. Such precedent recognizing grounds to 

charge for other crimes committed while resisting an unlawful arrest is 

inapposite to the issue before us, as the only conviction before us is for 

resisting arrest, which we vacate for elemental reasons specific to the resisting 

arrest statute. Indeed, indicative of the Commonwealth’s appreciation that 

an arrestee’s assaultive conduct during an unlawful arrest is not excused as a 

matter of law is that Appellant faced assault charges for his conduct during 

the arrest, although, at trial, he was acquitted of such charges under the facts. 

In addition, we also find the present matter to be factually 

distinguishable from other decisional law, cited by the trial court, holding that 

resisting a lawful arrest effected for an earlier assault committed during an 

unlawful arrest will support a charge for resisting arrest. Here, there was no 

evidence of a temporally distinct resistance by Appellant to a subsequent, 

lawful arrest based on probable cause of prior assaultive behavior. Instead, 

Appellant’s resistant conduct occurred during the officer’s ongoing attempt to 

subdue and handcuff Appellant without probable cause of drug and/or weapon 

possession.