J-S10037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVIN BARRY KIMBLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1178 MDA 2021

Appeal from the Judgment of Sentence Entered August 3, 2021

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

No: CP-06-CR-0000352-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 08, 2022

Appellant, Devin Kimble, appeals from the aggregate judgment of 

sentence of two years’ probation, which was imposed after his jury trial 

conviction for resisting arrest and recklessly endangering another person 

(REAP).

1,2

 We affirm.

The facts underlying this appeal are as follows. On January 4, 2019, 

Police Officer Pablo Dominguez (Officer Dominguez) and Police Officer Shawn 

Heck (Officer Heck) were driving in the 1200 block of Perkiomen Avenue at 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 5104 and 2705, respectively.

2 Additionally, the trial court found Appellant guilty of two traffic offenses, 

refusal to surrender registration plates and cards upon suspension and driving 

with a suspended license. 75 Pa.C.S. §§ 1376(a) and 1543(a), respectively. 

The trial court sentenced Appellant to pay fines for both charges. 
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3:00 a.m. N.T., 8/2/21, at 78-80. Officer Dominguez observed Appellant’s 

vehicle, checked the status of the license plate and determined that it was 

suspended or revoked. Id. at 80. Appellant had pulled his vehicle into a 

parking spot on the road when Officer Dominguez initiated a traffic stop of 

Appellant’s vehicle. Id. at 81-86.

Officer Dominguez approached the driver’s side of the vehicle and 

informed Appellant that he was being pulled over because the plate was 

suspended. Id. at 86. Officer Dominguez testified that Appellant immediately 

became upset and angry and stated he believed the officers initiated the stop 

because of his race. Id. at 87-88. Appellant provided Officer Dominguez with 

the car information but did not produce a driver’s license. Id. Officer 

Dominguez determined that Appellant had a scofflaw warrant for driving with 

a suspended license. Id. at 91. 

Before taking Appellant into custody based on the scofflaw warrant, 

Officer Dominguez decided to call for backup and Officer Bryan Baxter arrived 

on the scene. Id. at 92-93. The three officers approached the vehicle and 

ordered Appellant to exit. Id. at 92-93. Appellant began to exit and the 

officers ordered him to turn around and face the vehicle, but Appellant did not 

comply. Id. at 94. Officer Dominguez testified that when he secured a 

handcuff on Appellant’s one wrist, Appellant pulled his hands toward his chest, 

tensed his arms, and stepped on the side of the car to push himself up and 

away from the officers. Id. at 95. Officer Baxter testified that Appellant used 
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moderate force to actively tuck, tense, and pull his arms away from the 

officers. Id. at 62-65. 

Appellant and the officers went to the ground in the middle of the 

southbound lane and Appellant continued to struggle against the officers by

pulling his hands toward his chest. Id. at 65. Officer Dominguez testified 

that he was pulling hard and using substantial force because Appellant was 

trying to pull his arms under his body as much as he could. Id. at 98. Officer 

Baxter testified that he was using a good amount of force trying to get 

Appellant’s arm free. Id. at 67. Officer Dominguez testified that Appellant 

was pulling hard, and screaming and yelling. Id., at 98. The officers testified 

that the struggle to handcuff Appellant lasted about a minute to a minute and 

a half. Id. at 70, 99. 

The struggle occurred in the southbound lane of traffic, and Officer 

Baxter testified that the officers’ feet were close to the double yellow line in 

the road and that he observed traffic going in both directions, with cars 

passing within two to three feet of the officers. Id. at 68. Officer Dominguez 

testified he was eventually able to secure Appellant’s other arm into the 

handcuffs and stated that Appellant was resisting during the entire episode. 

Id. at 100-101. Officer Baxter testified that he had minor scrapes on his knee 

as a result of the episode. Id. at 71. It took two officers to walk Appellant to 

the police wagon because Appellant continued to push forward and backwards 

and officers had to pull Appellant’s arms back so he could be searched. Id. 

at 101-102. 
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Appellant was arrested and charged with the offenses stated above. He 

proceeded to a jury trial on August 2, 2021 and was found guilty of resisting 

arrest and REAP. The trial court then found Appellant guilty of the summary 

traffic violations after a bench trial. The trial court sentenced Appellant to an 

aggregate sentence of two years’ probation plus fines. Appellant filed a timely 

post-sentence motion, which the trial court denied on August 16, 2021. On 

September 8, 2021, Appellant filed this timely direct appeal.3

Appellant presents the following issues for our review:

1. Whether the guilty verdict for resisting arrest was in error as 

the evidence presented at trial was insufficient to prove beyond 

a reasonable doubt an essential element of the offense; 

specifically, the Officers were not in danger of bodily injury and 

did not need to employ substantial force in order to arrest 

Appellant. 

2. Whether the guilty verdict for recklessly endangering another 

person was in error as the evidence at trial was insufficient to 

prove beyond a reasonable doubt an essential element of the 

offense, specifically, officers were not placed in danger of 

serious bodily injury or death. 

Appellant’s Brief, at 4. 

In reviewing the sufficiency of the evidence, our standard of review is 

as follows:

Whether viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to 

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3 The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal on September 13, 2021. Appellant filed his 

timely Rule 1925(b) statement on September 23, 2021. The trial court 

entered its opinion on November 10, 2021.
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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 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. . . . 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (citation 

and internal brackets omitted) (some formatting), appeal denied, 174 A.3d 

558 (Pa. 2017). “Moreover, if a fact finder reasonably determines from the 

evidence ‘that all of the necessary elements of the crime were established, 

then the evidence will be deemed sufficient to support the verdict.’” 

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). A claim 

challenging the sufficiency of the evidence is a question of law; as such, the 

standard of review is de novo and the scope of review is plenary. 

Commonwealth v. Weimer, 977 A.2d 1103, 1104-05 (Pa. 2009) (citation 

omitted). 

Appellant argues, first, that a mere assertion that substantial force was 

used by a police officer is not sufficient evidence to convict him of resisting 

arrest. Appellant’s Brief at 15. He asserts that the incident was merely a 

scuffle. Id. at 16. Appellant compares the facts of his case to 

Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981) and 
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Commonwealth v. Eberhardt, 450 A.2d 651 (Pa. Super. 1982). Appellant’s 

Brief at 14-15. 

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. § 5104. In addition to proving that the person had the intent to 

prevent a public servant from effecting a lawful arrest or discharging any other 

duty, this statute contains two additional disjunctive provisions. The 

Commonwealth must prove that the person (1) created a substantial risk of 

bodily injury to the public servant or to anyone else or (2) employed means 

justifying or requiring substantial force to overcome the resistance. See

Eberhardt, 450 A.2d at 652 (appellant only charged with the first of the two 

disjunctive provisions found in § 5104.).

A conviction for resisting arrest cannot be sustained with evidence of a

minor scuffle. See, e.g., Rainey, 426 A.2d at 1150 (holding that simply 

trying to escape from officer’s grip did not meet requirements for resisting 

arrest). “[I]t is equally well-established that a suspect’s mere flight to escape 

arrest does not violate § 5104[.]” In Int. of Woodford, 616 A.2d 641, 644 

(Pa. Super. 1992). 

[The resisting arrest statute] does not require evidence of serious 

bodily injury, nor does it require actual injury. Merely exposing 

another to the risk of such injury is sufficient to sustain a 

conviction[.]
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Id. at 643–44. 

Appellant argues that the facts of his case are similar to Rainey, 426 

A.2d 1148 and Eberhardt, 450 A.2d 651. However, a closer examination of 

those cases shows that they are readily distinguishable. In Rainey, the 

appellant squirmed, wiggled, and shook himself to get away from the officer

who had grabbed him by the sleeve of his coat when he attempted to run 

away. Rainey, 426 A.2d at 1149. This Court stated the “[a]ppellant's actions 

in attempting to escape were no more than efforts ‘to shake off the 

policeman’s detaining arm.’” Id. at 1150. We concluded that “[a]t most this 

was a ‘minor scuffle’ incident to an arrest.” Id. 

In Eberhardt the appellant was charged in the Information with 

resisting arrest by creating a substantial risk of bodily harm to the officers. 

The officers were executing a valid arrest warrant for appellant in his home

and upon finding appellant hiding under the bed, the appellant began to 

“scuffle” with them. Id. at 652. “The scuffle proceeded into the living room 

and then downstairs into the dining room. During the scuffle, much furniture 

was overturned and one of the officers sustained a bruise on his forearm.” 

Id. The appellant ultimately escaped through the third-floor window. Id. 

This Court determined that the “appellant’s actions were only attempts to 

escape and not an aggressive assertion of physical force by appellant against 

the officers.” Id. at 653. We found that there was no substantial risk of bodily 

harm to the officers. Notably, this Court stated it did not analyze whether the 
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appellant “employed means justifying or requiring substantial force to 

overcome the resistance” because it was not charged in the Information. Id.

“Viewing all the evidence admitted at trial in the light most favorable to 

the Commonwealth as verdict winner,” see Fortson, 165 A.3d at 14, the 

evidence is sufficient to establish resisting arrest because Appellant created a 

substantial risk of bodily injury to the officers by continuing to struggle with 

them as they were sprawled out in the middle of an active lane of traffic and

within two to three feet of vehicles passing in either direction. Additionally, 

the evidence is sufficient to support the conviction because Appellant used 

means requiring substantial force to overcome the resistance, which is evident 

from his actions upon exiting the vehicle. See Commonwealth v. Jackson, 

907 A.2d 540, 546 (Pa. Super. 2006) (sufficient evidence for resisting arrest 

when appellant created a substantial risk of bodily injury and employed means 

requiring substantial force to overcome his resistance by continuing to resist

the officer attempting to take him into custody, kicking backward and striking 

the officer in his knee, requiring the officer to struggle to overcome the

resistance and once taken into custody appellant continued to resist attempts 

to subdue him when he spat blood and saliva at the officer); Commonwealth

v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (sufficient evidence for 

resisting arrest when officer testified that when he attempted to remove 

appellant’s hand from his pocket appellant struggled with him, striking him 

with his left and right shoulders, while cursing and telling the officer to get off 

of him).
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Appellant used a moderate amount of force to pull up his arms and tense 

them up when Officer Dominguez placed a handcuff around his right wrist. He 

stepped onto the step at the bottom of the car, pressed himself up and away 

from the officers and continued to pull up, and tuck up his arms. Additionally, 

once on the ground, Appellant persisted in his resistance by continuing to pull

hard on his arms to get them under his full body weight, forcing the officers

to pull hard to attempt to dislodge them from under Appellant’s body. Officer 

Baxter used a good amount of force and Officer Dominguez had to use a 

substantial amount of force to overcome Appellant’s continuous resistance. 

Even after securing Appellant with handcuffs, Appellant continued to struggle 

with officers on the way to the police wagon and before being searched. 

Appellant’s issue is without merit as he both created a substantial risk of bodily 

injury to the officers and employed means justifying or requiring substantial 

force to overcome the resistance. 

Next, Appellant challenges the sufficiency of the evidence regarding the 

conviction for REAP. Specifically, Appellant argues that the Commonwealth 

did not prove beyond a reasonable doubt that the officers were in danger of 

serious bodily injury or death. Appellant’s Brief, at 16. Appellant argues that 

merely arresting Appellant in the road does not establish a risk of death or 

serious bodily injury. Id. He asserts that his resistance itself did not establish 

risk of serious bodily injury to the officers and argues that the danger posed 
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to the officers is no more than the danger posed to any officer while making 

a traffic stop on a travelled road. Id. at 16-18.4 

A person commits a misdemeanor of the second degree if he 

recklessly engages in conduct which places or may place another 

person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705 (emphasis added). 

“Serious bodily injury” is defined as “bodily injury 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.

Reckless endangerment of another person (“REAP”) requires the 

creation of danger, so the Commonwealth must prove the 

existence of an actual present ability to inflict harm to another.

Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa. Super. 2019) (internal 

citation omitted). 

“[T]he Commonwealth must prove that the defendant had an actual 

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

Commonwealth v. Hopkins, 747 A.2d 910, 915–16 (Pa. Super. 2000)

(internal citation omitted). “Danger, not merely the apprehension of danger, 

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4 To the extent that Appellant challenges the mens rea requirement for REAP, 

see Appellant’s Brief at 18, we find this is waived as he did not specify this 

element in his Rule 1925(b) statement. “[W]hen challenging the sufficiency 

of the evidence on appeal, the [a]ppellant’s [Pa.R.A.P.] 1925 statement must 

specify the element or elements upon which the evidence was insufficient in 

order to preserve the issue for appeal.” Commonwealth v. Hoffman, 198 

A.3d 1112, 1125 (Pa. Super. 2018) (internal citation omitted, brackets in 

original). 
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must be created.” Id. at 916 (internal citation omitted). “[T]he mere fact 

that the victim only sustained minor injuries and did not sustain “serious bodily 

injury” does not ipso facto establish that appellant’s actions did not place 

others in danger of such injury.” Commonwealth v. Lawton, 414 A.2d 658, 

662 (Pa. Super. 1979).

“Viewing all the evidence admitted at trial in the light most favorable to 

the Commonwealth as verdict winner,” see Fortson, 165 A.3d at 14, the 

evidence is sufficient to establish that Appellant’s conduct placed the officers 

in danger of death or serious bodily injury. See Commonwealth v. Headley, 

242 A.3d 940, 944 (Pa. Super. 2020) appeal denied, 253 A.3d 675 (Pa. 2021)

(REAP established where, during an argument with his paramour, appellant 

discharged his gun into the floor of his apartment, the bullet entered the 

apartment of his downstairs neighbor and within three or four feet from where 

she was sitting, placing her in danger of death or injury and could have 

seriously wounded or killed her and finding appellant’s actions created actual 

danger and not merely apprehension of danger.) 

Appellant’s actions, by continuing to struggle with officers in the middle 

of the southbound lane of an active road while cars were driving by two to 

three feet away and the struggle caused the officers’ legs to be within two feet 

of the double yellow lines in the road, placed the officers in danger of being 

struck by a car driving in either direction. Being struck by a car going 25 to 

35 miles per hour could certainly result in death or serious bodily injury, 

particularly when it was still dark outside and the street lights were obstructed 
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by trees. The episode occurred in the middle of the active southbound lane 

of travel. The northbound lane was in no way obstructed so that cars could 

drive northbound and cars driving southbound would have to enter into the 

northbound lane, pass the officers’ cars, and come back into the southbound 

lane, where the struggle was occurring. For the reasons above, we conclude 

that Appellant’s claim of error is meritless: the evidence was sufficient to 

establish that Appellant’s actions created actual danger and placed or may 

have placed the officers in danger of death or serious bodily injury. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022