J-S13038-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JODY ANDREW BOYER 

 Appellant No. 1531 WDA 2014 

Appeal from the Judgment of Sentence entered September 11, 2014 

In the Court of Common Pleas of Fayette County 

Criminal Division at No: CP-26-CR-0000069-2014 

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ. 

MEMORANDUM BY STABILE, J.: FILED JUNE 3, 2015 

 Appellant Jody Andrew Boyer appeals from the judgment of sentence 

entered in the Court of Common Pleas of Fayette County (“trial court”), 

following his jury conviction for resisting arrest under Section 5104 of the 

Crimes Code (Code), 18 Pa.C.S.A. § 5104.1 Upon review, we affirm. 

 The facts and procedural history underlying this case are 

uncontroverted. As summarized by the trial court: 

____________________________________________ 

1

 Section 5104 of the Code provides: 

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. 
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1) On December 4, 2013, at approximately 11:00 a.m., South 

Connellsville Borough Police Officer, Russell Paul Miller, Jr., was 

dispatched to 1511 Hyndman Street, following a phone call 

advising that someone was occupying an abandoned trailer 

located thereon. 

2) Officer Miller arrived at the reported location, operating his 

patrol vehicle and dressed in uniform. Officer Miller exited his 

patrol vehicle and approached a single-wide trailer marked as 

“condemned”. Through the front trailer window, Officer Miller 

observed a female occupant inside the trailer. 

3) While continuing his approach to conduct his investigation, 

Officer heard a door slam open, and out of the corner of his eye 

he observed [Appellant], dressed in a white shirt and blue jeans, 

running away from the back of the trailer. Officer Miller 

observed [Appellant] carrying a grey, Wal-Mart shopping bag as 

[Appellant] ran from the property. 

4) Officer Miller yelled to [Appellant], “police, stop, drop the bag, 

show me your hands.” When [Appellant] did not comply, Officer 

Miller engaged in a foot pursuit. 

5) Officer Miller continued his pursuit until such time as he 

observed [Appellant] reach a down-hill embankment located on 

Hyndman Street, at which time Officer Miller gave a second 

verbal command. [Appellant] stopped and looked back toward 

Officer Miller before entering the roadway, causing two vehicles 

traveling [in] opposite directions to swerve to avoid contact. 

Officer Miller noted [Appellant’s] actions almost caused a vehicle 

collision. 

6) [Appellant] then crossed over the guard rail and entered into 

an active train yard, maneuvering between moving train cars. 

Officer Miller stopped his foot pursuit for officer safety. 

7) [Appellant] was charged with [r]esisting [a]rrest and 

[d]isorderly [c]onduct. He filed an [o]mnibus [p]retrial [m]otion 

with [a]rgument on May 9, 2014 which was denied by [the trial 

court] following argument on May 30, 2014. Following a jury 

trial on September 8, 2014, [Appellant] was convicted of 

[r]esisting [a]rrest and found not guilty of [d]isorderly 

[c]onduct. [Appellant] was sentenced to not less than 6 months 

nor longer than 24 months incarceration on September 11, 

2014. 

Trial Court Opinion, 11/17/14, at 1-3. 

 On appeal, Appellant essentially raises two issues for our review. 

First, Appellant argues the Commonwealth did not present sufficient 
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evidence to support his conviction for resisting arrest, because it failed to 

establish the “lawful arrest” and “substantial risk of bodily injury” elements 

under Section 5104.2 Second, Appellant argues Officer Miller’s in-court 

identification of Appellant was unreliable because “[Officer Miller] did not 

know the individual’s identity at the time of the incident.” Appellant’s Brief 

at 15.3 

“A claim challenging the sufficiency of the evidence is a question of 

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). 

 

____________________________________________ 

2

 To the extent Appellant argues the Commonwealth failed to establish a 

prima facie case, we reject such argument as meritless. Appellant here was 

convicted in a jury trial. See Commonwealth v. McCullough, 461 A.2d 

1229, 1231 (Pa. 1983) (concluding the fact that the Commonwealth did not 

establish a prima facie case of robbery at the defendant’s preliminary 

hearing was immaterial where the Commonwealth met its burden of proving 

the underlying offense at trial beyond a reasonable doubt). Moreover, as 

the Commonwealth notes, Appellant does not state in his brief what, if any, 

statements he seeks to suppress. 

3

 Appellant failed to provide the facts of this case in the “statement of the 

case” section of his brief. Instead, he provided a six-sentence summary of 

procedural history irrelevant to the issues raised. Appellant’s brief violates 

Rule 2117(a)(4), which requires an appellant to set forth “[a] closely 

condensed chronological statement, in narrative form, of all the facts 

which are necessary to be known in order to determine the points in 

controversy, with an appropriate reference in each instance to the 

place in the record where the evidence substantiating the fact relied 

on may be found.” Pa.R.A.P. 2117(a)(4) (emphasis added); see also 

Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa. Super. 1993) 

(quashing appeal because, among other reasons, appellant’s statement of 

the case “only attempts to provide some minimal information regarding the 

procedural and factual history of the case”). Nevertheless, we decline to find 

waiver on this basis. 
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The standard we apply in reviewing the sufficiency of the 

evidence is whether 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 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 

finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) 

(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014). 

 We first address Appellant’s argument that the underlying arrest was 

unlawful. In this regard, Appellant points out “the Commonwealth never 

demonstrated that the property was actually abandoned or posted. Further, 

Officer Miller never observed [Appellant] actually inside the trailer. He only 

saw [Appellant] run behind the trailer.” Appellant’s Brief at 11. Thus, given 

the totality of the circumstances, Appellant argues, “the officer’s attempt to 

make an arrest was not supported by probable cause.” Id. We disagree. 

When we are asked to determine whether probable cause exists to 

arrest an appellant, we are called upon to render a legal determination, “for 

which our scope of review is plenary and our standard of review de novo.” 

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007). 
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A defendant may be convicted of resisting arrest if he, “with the intent 

of preventing a public servant from effecting a lawful arrest or 

discharging any other duty, . . . 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). 

 “[T]o be convicted of resisting arrest, the underlying arrest must be 

lawful.” Jackson, 924 A.2d at 620 (citation omitted). In other words, “the 

lawfulness of an arrest depends on the existence of probable cause to arrest 

the defendant.” Id. As we recently explained: 

Probable cause to effectuate an arrest exists when the facts and 

circumstances within the knowledge of the arresting officer are 

reasonably trustworthy and sufficient to justify a person of 

reasonable caution in believing that the arrestee has committed 

an offense. In addressing the existence of probable cause, 

courts must focus on the circumstances as seen through the 

eyes of the trained police officer, taking into consideration that 

probable cause does not involve certainties, but rather the 

factual and practical considerations of everyday life on which 

reasonable and prudent men act. 

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014) 

(quotation omitted). 

 Instantly, we find no basis upon which to disagree with the trial court’s 

conclusion that the underlying arrest was lawful, i.e., supported by probable 

cause. As the trial court found: 

Officer Miller . . . was dispatched to the location, having received 

a phone call regarding the occupation of an “abandoned” and 

“posted” property. Upon arrival, Officer Miller approached a 

single-wide trailer located on the property and through the 
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window observed a female inside the trailer. Soon thereafter, 

Officer Miller heard a door slam open and out of the corner of his 

eye, he saw [Appellant] running from the property carrying a 

bag. Officer Miller testified that [Appellant] ignored two separate 

verbal commands to stop, and continued to flee. 

Trial Court Opinion, 11/17/14, at 5.4 Based on these findings, the trial court 

concluded: 

____________________________________________ 

4

 At trial, Officer Miller testified: 

I received a telephone call stating that there were people 

occupying a trailer that was posted “Not For Occupancy. . . . I 

went to the residence to investigate it. I was in full patrol 

uniform . . . . Duty boots, pants, shirt, patches, tie, [and] badge. 

. . . I took our Crown Victoria[.] 

 . . . . 

I approached through an alley. The trailer was the last 

residence on the alley on the left-hand side. It was a singlewide trailer. I parked in the alley directly in front of the trailer, 

the short ways, not the longways, so that I could see both the 

front and the back on my approach. . . . As I exited my vehicle, 

there was a female in the window. . . . I observed the trailer. I 

could see down both axes of the trailer both sides, the front and 

the back. On the front there was a porch, and on the back there 

was just a yard. 

 . . . . 

I was heading towards the front because I heard verbal 

notification that someone was there. As I was turning to go that 

way, I observed a male making landfall from the upper door of 

the trailer and running down the yard. 

 . . . . 

It was a white male wearing a white T-shirt, blue jeans, and had 

what appeared to be a gray Walmart bag, hugging it as though 

you would hold a football. 

 . . . . 

I turned and began to pursue. I made a verbal notification, 

“Stop, drop the bag, police, keep your hands where I can see 

[them].” The individual did not stop. . . . He ran, he jumped 

(Footnote Continued Next Page) 
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looking at the totality of the circumstances, the information 

provided to Officer Miller regarding the occupation of the 

abandoned property, together with the Officer’s personal 

observations of the female occupant within the property, as well 

as [Appellant] existing the property, carrying a bag and hastily 

fleeing on foot, constitutes a reasonable belief that [Appellant] 

had committed or was in the process of committing a crime. 

Id. 5-6.5 Although the Commonwealth and the trial court do not identify per 

se the crime providing Officer Miller with probable cause to arrest, the 

record, as recited above, makes clear that the offense was a trespass. 

Officer Miller received a phone call about individuals occupying a trailer 

posted for non-occupancy and, upon his arrival at the scene, he observed a 

female through a window and then saw Appellant running away from the 

(Footnote Continued) _______________________ 

down the embankment, I pursued him. I slid down the 

embankment. I announced again, “Please stop, drop the bag, 

get your hands where I can see [them].” He stopped in the 

middle of the intersection, turned to face me to see how far I 

was. Two vehicles swerved and nearly cause a vehicle collision. 

He immediately began running again, went over a guardrail into 

the train yard, where he went between two moving train cars. 

At that time I broke pursuit, because I did not want to risk 

injury. 

N.T. Trial, 9/8/14, at 17-22. 

5

 The trial court also noted: 

Additionally, [Section 5104] requires that there be a “discharge 

of any other duty” within the meaning of the statute. In the 

instant case, Officer Miller, a public servant, was dispatched in 

response to a telephone call reporting the occupation of a posted 

abandoned property. [The trial court] finds that the act of 

investigating such an unlawful occupation within the locale of 

South Connellsville Borough, to be legitimate within the purview 

of the discharge of duties of a Borough Police Officer such as 

Office Miller. 

Trial Court Opinion, 11/17/14, at 6. 
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trailer. Based on these facts, we believe Officer Miller had probable cause to 

arrest Appellant. 

 Next, we address Appellant’s argument that the Commonwealth failed 

to provide sufficient evidence to establish that Appellant’s conduct created a 

substantial risk of bodily injury to the Officer Miller. Thus, Appellant argues 

“Officer Miller was not exposed to substantial danger during the December 4, 

2013, foot pursuit. Officer Miller never came in contact with the individual 

he later identified as [Appellant] and he suffered no injuries as a result of 

the chase that day.” Appellant’s Brief at 12 (emphasis added). 

 It is well-settled that “it is not criminal merely to flee arrest. However, 

where the circumstances of the flight expose the pursuing officers to 

substantial danger a conviction for resisting arrest is proper.” 

Commonwealth v. Miller, 475 A.2d 145, 146 (Pa. Super. 1984). Section 

5104 “does not require serious bodily injury. Nor does it require actual 

injury to the arresting officer. Rather, sufficient resistance is established if 

the arrestee’s actions created a substantial risk of bodily injury to the 

arresting officer.” Commonwealth v. Lyons, 555 A.2d 920, 925 (Pa. 

Super. 1989). 

 Instantly, we agree with the trial court’s conclusion that the 

Commonwealth provided sufficient evidence to establish the element of 

substantial risk of bodily injury under Section 5104. The record in this case 

reveals Appellant subjected Officer Miller to substantial danger, requiring 

Officer Miller to discontinue the foot pursuit. Similarly, Appellant also put 
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himself and motorists in danger. As the trial court found, “[Appellant ran] 

down an embankment, before entering into a roadway in which vehicles 

coming in two different directions had to swerve to avoid contact, nearly 

avoiding a collision. Thereafter, . . . [Appellant] cross[ed] the guard rail and 

enter[ed] an active train yard, maneuvering between moving train cars.” 

Trial Court Opinion, 11/17/14, at 6. 

 Based on our review of the entire record and viewing the evidence in 

the light favorable to the Commonwealth, thereby giving it the benefit of the 

reasonable inferences derived therefrom, we conclude that the 

Commonwealth presented sufficient evidence to sustain Appellant’s 

conviction for resisting arrest. Accordingly, given the evidence and the 

circumstances following Appellant’s flight from the abandoned trailer, the 

jury could, and did, reasonably infer that Appellant resisted a lawful arrest 

and subjected Officer Miller and motorists to substantial risk of bodily injury. 

 Appellant next argues Officer Miller’s in-court identification of Appellant 

was unreliable because Officer Miller did not know Appellant personally at 

the time of the incident.6 

Before addressing the merits of Appellant’s claim, we must determine 

whether Appellant properly has preserved the issue for our consideration. 

____________________________________________ 

6

 Appellant fails to identify the place in the record where this issue is 

preserved, as is required in our Rules of Appellate Procedure. See R.A.P. 

2117(c), 2119(e). 
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With respect to preserving challenges to the admission or exclusion of 

evidence, the Pennsylvania Rule of Evidence 103 provides in relevant part: 

(a) Preserving a Claim of Error. A party may claim error in a 

ruling to admit or exclude evidence only: 

(1) if the ruling admits evidence, a party, on the record: 

(A) makes a timely objection, motion to strike, or 

motion in limine; and 

(B) states the specific ground, unless it was apparent 

from the context[.] 

Pa.R.E. 103(a)(1). In Pennsylvania, it is well-settled that a party must make 

a timely and specific objection at trial in order to preserve an issue for 

appellate review. See Pa.R.A.P. 302(a); see also Commonwealth v. 

Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation omitted) (“In 

order to preserve an issue for review, a party must make a timely and 

specific objection at trial.”). Failure to do so results in waiver of that issue 

on appeal. See Pa.R.A.P. 302(a); see also Commonwealth v. Schoff, 

911 A.2d 147, 158 (Pa. Super. 2006). 

Instantly, the trial transcript reveals that Appellant’s counsel failed to 

object to Appellant’s in-court identification by Officer Miller. 

Q. Okay. And were you able to view this individual? 

A. I was. 

Q. The individual that you observed on the roadway on the date 

in question that we’re speaking of, is that individual present in 

the courtroom today? 

A. Yes, ma’am. He’s the individual in the purple shirt, seated 

right there. 

[The Commonwealth:] Your Honor, I would ask that the record 

reflect that Officer Miller has identified [Appellant] in this matter. 
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The [trial court]: The record will so reflect. 

N.T. Trial, 9/8/14, at 22-23. Accordingly, we conclude Appellant has waived 

his evidentiary argument. See Commonwealth v. Ballard, 80 A.3d 380, 

400 (Pa. 2013), (holding appellant’s arguments were waived because 

appellant failed to object at trial), cert. denied, 134 S. Ct. 2842 (2014); 

see also Pa.R.E. 103(a). 

 Judgment of sentence affirmed. 

 Judge Mundy joins the memorandum. 

 President Judge Emeritus Bender files a dissenting statement. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/3/2015