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14-P-364 Appeals Court

COMMONWEALTH vs. MICHAEL SYLVIA.

No. 14-P-364.

Bristol. January 9, 2015. - May 5, 2015.

Present: Katzmann, Sullivan, & Blake, JJ.

Arrest. Resisting Arrest. Practice, Criminal, Required 

finding.

Indictment found and returned in the Superior Court 

Department on October 26, 2012. 

The case was tried before Robert J. Kane, J. 

Thomas C. Foley for the defendant.

Corey T. Mastin, Assistant District Attorney, for the 

Commonwealth.

KATZMANN, J. Having been convicted by a Superior Court 

jury of resisting arrest, the defendant appeals. He contends 

that the evidence was insufficient to support a conviction under 

the second prong of the resisting arrest statute, "using any 

other means which creates a substantial risk of causing bodily 
2

injury to such police officer or another." G. L. c. 268, 

§ 32B(a)(2), inserted by St. 1995, c. 276. We affirm.

Background. Under the familiar standard, on appeal the 

evidence is viewed in the light most favorable to the 

Commonwealth to determine whether "any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 

(1979) (citation omitted).

Here, the analysis begins when Officer Kenneth Mendes 

advised the defendant that he was subject to arrest, and 

continues through the defendant's flight and physical resistance 

to the officer's efforts to place the defendant into physical 

custody. The officer first made contact with the defendant, for 

whom he had an arrest warrant, when, while patrolling in a 

cruiser with his partner in a high crime area, he noticed the 

defendant walking on a New Bedford street shortly before 2 A.M. 

The officer exited the cruiser and told the defendant that he 

had lawful authority to place him under arrest. The defendant, 

saying "no" and shaking his head in a manner understood by the 

officer to mean "no," fled on foot. The officer observed the 

defendant continuously hold the waistband of his pants with one 

hand as he fled. Seeking to immobilize the defendant, the 
3

officer, while chasing him, deployed his "Taser"

1 to no effect. 

Eventually, the officer was able to grab onto the defendant's 

shoulder and jacket, but the defendant was able to turn and 

shuck the jacket. The foot pursuit continued, as the defendant 

maintained his hold on the waistband of his pants, through a 

parking lot and onto a public roadway under construction. There 

was no asphalt on the roadway. The conditions of the roadway 

included excavated dirt, steel plates, compacted dirt, and other 

construction site objects, such as barrels. As the defendant 

ran across the public roadway, he threw a metal object onto the 

street.2 The defendant continued to flee but no longer held the 

waistband of his pants. He ran onto the sidewalk, crossed the 

public roadway again, and went into the aforementioned parking 

lot. The officer was able to catch the fatigued defendant and 

put him on the ground. On the ground, the officer attempted to 

roll the defendant onto his stomach to apply handcuffs, but the 

defendant repeatedly pulled his arms away and moved his hands. 

As the "struggle" continued and the defendant continued pulling 

away, the officer successfully deployed his Taser to gain the 

 

1 The term Taser is "used for a gun that fires electrified 

darts to stun and immobilize a person." Merriam-Webster's 

Collegiate Dictionary 1279 (11th ed. 2005).

2 A firearm was retrieved where the officer had observed the 

defendant throw a metallic object. It was tested for 

fingerprints but no usable prints were found. The defendant was 

acquitted by the jury of possession of a firearm without a 

firearm identification card.
4

defendant's compliance. The officer was then able to place 

handcuffs on the defendant.

Discussion. A defendant resists arrest if "he knowingly 

prevents or attempts to prevent a police officer, acting under 

color of his official authority, from effecting an arrest of the 

actor or another, by (1) using or threatening to use physical 

force or violence against the police officer or another; or (2) 

using any other means which creates a substantial risk of 

causing bodily injury to such police officer or another." G. L. 

c. 268, § 32B(a), inserted by St. 1995, c. 276. The defendant 

concedes that his use of physical force would satisfy the 

elements of resisting arrest under G. L. c. 268, § 32B(a)(1). 

However, in his jury charge -- which did not draw objection from 

either the Commonwealth or the defendant -- the judge restricted 

the Commonwealth to proof of resistance "by using means which 

created a substantial risk of causing bodily injury to Officer 

Mendes." As the Commonwealth acknowledges, its proof must have 

been sufficient to sustain a conviction on the theory of 

liability on which the case was submitted to the jury. See 

Commonwealth v. Rodriguez, 58 Mass. App. Ct. 610, 621 (2003). 

We thus examine the sufficiency of the evidence under G. L. 

c. 268, § 32B(a)(2).

The focus of prong two of the resisting arrest statute is 

on "criminalizing the 'creation' of the risk" (emphasis 
5

supplied). Commonwealth v. Montoya, 457 Mass. 102, 105 (2010). 

In assessing the sufficiency of the evidence, the analysis is 

not a static dissection of factors in isolation but an 

evaluation informed by the dynamic fullness of the totality of 

the circumstances. Here, that totality encompasses the rapidly 

evolving, uncertain, and tense environment of foot pursuit. To 

be sure, flight from arrest, alone, does not create a 

substantial risk of bodily injury to the arresting officer or 

another. See id. at 104 & n.4. However, the circumstances of 

flight from arrest can create such a risk. Id. at 104-105. 

Here, the defendant had been told that he was going to be 

arrested, and his ensuing actions and flight were clearly in 

response to that communication. Contrast Commonwealth v. Grant, 

71 Mass. App. Ct. 205, 209 (2008) ("During the defendant's 

flight from the police, there was no evidence to prove that he 

understood that the officers were effecting an arrest. He was 

simply running away from them"). The defendant twice led the 

pursuing officer in the late night darkness onto a dug-up, 

public roadway under construction with various terrain and 

object obstacles that posed a substantial risk of injury.3 

Moreover, motor vehicles could have been traveling on that 

 

3 Indeed, when the officer's partner sought to drive the 

cruiser to cut off the fleeing defendant's pathway, the cruiser 

slid on the gravel and steel plates on the dug-up road, hitting 

the brick facade of a café.
6

roadway, to the danger of the officer in hot pursuit. That no 

pedestrians or vehicles were observed at 2 A.M. does not mean 

that there was no substantial risk of bodily injury from 

potential traffic on a street that is ordinarily busy during 

daytime and nighttime hours. See Commonwealth v. Montoya, supra

at 105-106 (even where pursuing officers chose not to scale a 

fence and jump twenty feet into shallow water, that they did not 

actively subject themselves to risk did not defeat a finding of 

"substantial risk of bodily injury").

Furthermore, "conduct . . . [that] represents an active, 

physical refusal to submit to the authority of the arresting 

officers, and opposition to their efforts to effect the arrest," 

constitutes circumstances that can create a substantial risk of 

injury to the arresting officer. Commonwealth v. Maylott, 65 

Mass. App. Ct. 466, 469-470 (2006). "While the defendant's 

exertion of force in an attempt to prevent his arrest may not 

have overcome the police officers, the circumstances . . . 

presented a substantial risk of injury to them." Ibid. In 

Commonwealth v. Grandison, 433 Mass. 135, 144-145 (2001), the 

defendant stiffened and pulled his arms free as the officers 

were attempting to handcuff him. The defendant's action in 

Grandison, "especially at the moment he freed his arm," was 

sufficient for a rational trier of fact to conclude that the 

defendant by "any other means . . . created a substantial risk
7

of causing bodily injury to the police officers." Id. at 145

(quotations omitted). See Commonwealth v. Lender, 66 Mass. App. 

Ct. 303, 306 (2006) ("The defendant's resistance to being 

handcuffed and placed in the cruiser is sufficient resistance to 

amount to . . . a means creating a substantial risk of causing 

bodily injury to the arresting officer" [quotations omitted]). 

Here, the first time the officer caught up with the defendant, 

the officer grabbed onto the jacket worn by the defendant and a 

"scuffle" ensued, during which the defendant evaded the 

officer's effort to effect an arrest, as the defendant turned 

and "wiggled out" of the jacket. The second time the officer 

caught up with the defendant, they were on the ground and there 

was a "struggle" to gain control of the defendant's arms as he 

"kept pulling away" from the officer. Here, as in Commonwealth

v. Grandison, supra at 144-145, the officer's "characterization 

of the defendant's behavior as 'resisting' or 'struggling'" is 

not mere opinion but grounded in the evidentiary narrative. It 

was only after the officer deployed the Taser that he was able 

to overcome the defendant's "resistance" and place handcuffs on 

him.

We conclude that a rational trier of fact could have found 

the defendant's conduct presented a substantial risk of bodily 

injury to the officer.

Judgment affirmed.