J-A26007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KWANE CUFF,

Appellant No. 2160 MDA 2013

Appeal from the Judgment of Sentence October 15, 2013

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001389-2013

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 10, 2014

Kwane Cuff appeals from the judgment of sentence of twelve months 

probation imposed by the trial court after a jury found him guilty of resisting 

arrest and disorderly conduct. After careful review, we reverse.

Officer James Hawkins of the Harrisburg police was on routine patrol 

with his canine partner at 3:30 a.m. on February 15, 2013, when he 

received a call from another officer reporting approximately ten shots fired in 

a high crime area with numerous drug-related shootings. An additional 

citizen reported hearing shots fired in the area. Officer Anthony Fiore heard 

the same calls. Neither the citizen nor the officer who originally reported the 

shots could give a description of the shooter or shooters because they did 

not see the incident. Both Officer Hawkins and Officer Fiore responded to 

the general vicinity. When Officer Fiore arrived, he heard additional shots. 
J-A26007-14

- 2 -

Officer Hawkins observed a vehicle legally parked with its dome light on and 

radioed Officer Fiore that he was going to check the vehicle to determine if it 

was related to the call of shots fired. The two officers then traveled together 

in their own vehicles toward the car.

As Officer Hawkins approached, he saw Appellant standing outside of 

the car and another individual in the passenger seat. Officer Hawkins 

activated his high beams and illuminated the vehicle with his spotlights. At 

that point, he believed the person inside the car was an individual whom he 

knew had been convicted of several firearms violations.1 The person inside 

the car then exited and, according to Officer Hawkins, both men “started to 

step away in the opposite direction where [he] was parked in front of their 

vehicle.” N.T., 10/15/13, at 45. According to Officer Hawkins, “one or two” 

steps were taken away from the officer’s direction. Id. 

Officer Hawkins exited his car with his canine and ordered the men not 

to run and instructed them that they were not free to leave. Officer Fiore 

alighted from his car with his weapon drawn and directed the men to move 

to the front of their vehicle. Officer Fiore detained the passenger who 

originally was inside the car. The officer placed that man in handcuffs and 

performed a pat-down search. Officer Fiore did not recover anything from 

____________________________________________

1

 This initial belief proved to be incorrect. 
J-A26007-14

- 3 -

him. As Officer Fiore sat the person down, Appellant began to loudly swear 

at Officer Hawkins and demand that he get the dog away from him. 

Officer Fiore asked Appellant to cease yelling. Appellant refused, and 

Officer Fiore attempted to inform Appellant that he was going to frisk 

Appellant for officer safety. Appellant continued to scream at the officers 

and as Officer Fiore tried to frisk him, Appellant “tensed up his upper body 

and he pulled away from [Officer Fiore’s] grasp and then started to turn.” 

Id. at 64. Officer Fiore took Appellant to the ground. There was a “brief 

struggle” which “didn’t last very long at all” before Officer Fiore placed him 

in handcuffs and under arrest. Id. at 65. Appellant continued his profanitylaced tirade and threatened to sue the officers. As a result, several 

individuals exited a house, which was Appellant’s residence, and also 

became involved in the verbal altercation. No contraband or weapons were 

found on Appellant and police did not search the vehicle. 

The Commonwealth charged Appellant with disorderly conduct and 

resisting arrest. Appellant filed a pre-trial habeas corpus motion and a 

motion to suppress. The court denied those motions and the matter 

proceeded to a jury trial. The jury found Appellant guilty of the 

aforementioned charges. The court sentenced Appellant to two concurrent 

terms of twelve months probation. This timely appeal ensued. The court 

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Appellant complied, and the trial court 
J-A26007-14

- 4 -

authored its opinion. The matter is now ready for our review. Appellant 

presents four issues for this Court’s consideration.

I. Whether the trial court erred in instructing the jury to 

consider elements of the crime of disorderly conduct for 

which Appellant was not charged?

II. Whether the evidence presented by the Commonwealth 

was insufficient to prove beyond a reasonable doubt that 

Appellant committed the crime of disorderly conduct 

where:

A) the Commonwealth failed to prove that Appellant 

acted with the intent to cause public inconvenience, 

annoyance or alarm, or recklessly created a risk 

thereof, and

B) the Commonwealth failed to prove that 

Appellant created a hazardous or physically 

offensive condition by an act which serves no 

legitimate purpose?

III. Whether the evidence at trial was insufficient to prove that 

Appellant committed the crime of resisting arrest where 

the Commonwealth failed to prove beyond a reasonable 

doubt:

A) that Appellant created a substantial risk of 

bodily injury or resisted arrest by means justifying or 

requiring substantial force to overcome his 

resistance; and

B) that there was an underlying lawful arrest?

IV. Whether the trial court erred in denying Appellant’s 

[m]otion to [s]uppress where Appellant was illegally 

detained without probable cause or reasonable suspicion in 

violation of Article I, Section 8 of the Pennsylvania 

Constitution and the Fourth Amendment of the United 

States Constitution?

Appellant’s brief at 7-8. 
J-A26007-14

- 5 -

At the outset, we address Appellant’s sufficiency of the evidence 

arguments since a successful sufficiency challenge warrants discharge rather 

than a new trial. Commonwealth v. Torrito, 67 A.3d 29, 33 (Pa.Super. 

2013) (en banc); Commonwealth v. Breighner, 684 A.2d 143 (Pa.Super. 

1996) (en banc). Appellant’s initial sufficiency claim relates to his disorderly 

conduct conviction. We view all of the evidence admitted, even improperly 

admitted evidence, in conducting a sufficiency review. Commonwealth v. 

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such 

evidence in a light most favorable to the Commonwealth as the verdict 

winner, drawing all reasonable inferences from the evidence in favor of the 

Commonwealth. Id. When evidence exists to allow the fact-finder to 

determine beyond a reasonable doubt each element of the crimes charged, 

the sufficiency claim will fail. Id. 

The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. In addition, the Commonwealth can prove its case by circumstantial 

evidence. Where “the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the combined 

circumstances[,]” a defendant is entitled to relief. This Court is not 

permitted “to re-weigh the evidence and substitute our judgment for that of 

the fact-finder.” Id. 
J-A26007-14

- 6 -

The Commonwealth charged Appellant with disorderly conduct under 

18 Pa.C.S. § 5503(a)(4). That provision provides, 

(a) Offense defined.--A person is guilty of disorderly conduct 

if, with intent to cause public inconvenience, annoyance or 

alarm, or recklessly creating a risk thereof, he:

(4) creates a hazardous or physically offensive condition 

by any act which serves no legitimate purpose of the actor. 

18 Pa.C.S. § 5503(a)(4). In addition, where the defendant acts with the 

intent “to cause substantial harm or serious inconvenience, or if he persists 

in disorderly conduct after reasonable warning or request to desist[,] the 

offense is graded as a misdemeanor of the third degree. 18 Pa.C.S. 

§ 5503(b). Here, the Commonwealth charged Appellant with the thirddegree misdemeanor offense. The statute also defines the term “public.” 

Pursuant to 18 Pa.C.S. § 5503(c), “the word ‘public’ means affecting or likely 

to affect persons in a place to which the public or a substantial group has 

access; among the places included are highways, transport facilities, 

schools, prisons, apartment houses, places of business or amusement, any 

neighborhood, or any premises which are open to the public.”

Appellant acknowledges that the Commonwealth’s evidence 

established that he cursed and threatened to sue police. However, he 

maintains that, “[t]here was no evidence that any members of the public 

were around to witness the incident or that Appellant’s apparent yelling 

created a public disturbance or inconvenience.” Appellant’s brief at 22-23. 

Appellant continues that there were only four houses on the street, which 
J-A26007-14

- 7 -

was a dead-end street, and the members of his own family did not exit the 

house until after police arrested him. 

Appellant also submits that the Commonwealth did not prove that his 

actions created a hazardous or physically offensive condition. Appellant 

recognizes that the phrase “physically offensive condition” includes setting 

off a stink bomb, strewing rotten garbage in public, shining blinding lights 

into the eyes of the public, and invading the physical privacy of an 

individual. See Commonwealth v. Williams, 574 A.2d 1161 (Pa.Super. 

1990). Nonetheless, he contends that his swearing at police, and arguing 

about being handcuffed and searched did not create a physically offensive 

condition. 

The Commonwealth rejoins that Appellant’s verbal tirade at 3:30 a.m. 

in a residential area caused a public disturbance. It argues further that 

Appellant’s actions “put the officers in jeopardy by further charging an 

already tense situation, raised awareness that police were in the area, and 

brought more people out into a potentially harmful situation as the officers 

were conducting an investigation of a gun being fired in the area.” 

Commonwealth’s brief at 20. 

Viewing the evidence in a light most favorable to the Commonwealth, 

we find that the Commonwealth established that Appellant intended to cause 

public annoyance or alarm and recklessly created a risk of such annoyance 

or alarm. At 3:30 a.m., Appellant, on a public street, repeatedly began to 
J-A26007-14

- 8 -

loudly swear and verbally abuse police despite repeated attempts to calm 

him down. It is a reasonable inference from the record that Appellant 

intended to draw public attention to both himself and the police, thereby 

causing public alarm by screaming profusely at the police during the early 

morning hours of the day. In doing so, Appellant’s actions created a 

hazardous condition since the officers were investigating a report of multiple 

shots fired. Here, Appellant’s yelling may have alerted the culprits of the 

shots fired to the presence of police, endangering both the police and the 

community. See Williams, supra at 1164 (“A ‘hazardous condition’ is a 

condition that involves danger or risk.”). Further, it prevented the police 

from continuing their investigation into the shooting. Accordingly, we hold 

that Appellant’s disorderly conduct sufficiency claim does not entitle him to 

relief. 

Appellant also challenges the sufficiency of the evidence relative to his 

resisting arrest conviction. To be found guilty of resisting arrest, the 

Commonwealth must prove that the individual, “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 
J-A26007-14

- 9 -

overcome the resistance.” 18 Pa.C.S. § 5104.2 Running away, arguing with, 

or minor scuffling with police is insufficient. See Commonwealth v. Miller, 

475 A.2d 145 (Pa.Super. 1984) (fleeing from police alone is not resisting 

arrest, flight must expose officers to substantial danger); Comment to 18 

Pa.C.S. § 5104 (“This section changes existing law somewhat by not 

____________________________________________

2

 Under modern Pennsylvania law, one has no right to resist arrest, even if 

the arrest is unlawful. See Commonwealth v. Biagini, 655 A.2d 492 (Pa. 

1995); 18 Pa.C.S. § 505(b)(1)(i). This was a change in the common law 

that dated to the early days of the American republic. See Andrew P. 

Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting Individual 

Freedom?, 46 Drake L.Rev. 383 (1997). The United States Supreme Court 

in John Bad Elk v. U.S., 177 U.S. 529, 535, (1900), outlined that at 

common law, “If the officer had no right to arrest, the other party might 

resist the illegal attempt to arrest him, using no more force than was 

absolutely necessary to repel the assault constituting the attempt to arrest.” 

The United States Supreme Court also recognized in Wolf v. Colorado, 338 

U.S. 25 (1949), overruled in part on other ground, Mapp v. Ohio, 367 U.S. 

643 (1961), that “One may also without liability use force to resist an 

unlawful search.” Wolf, supra at 33 n.1 (citing Commonwealth v. 

Martin, 105 Mass. 178 (1870); State v. Mann, 27 N.C. 45 (1844)); cf. 

State v. Curtis, 2 N.C. 471 (1797) (“as the officer did not tell Curtis for 

what he arrested him, and the warrant he had was not under seal, Curtis

who resisted, and beat him for making the arrest, was acquitted.”); Coyle v. 

Hurtin, 10 John 85 (N.Y. 1813); State v. Worley, 33 N.C. 242, 243 (1850) 

(“a seal is essential to every warrant, issued by a magistrate to arrest any 

person upon a criminal charge. If there be no seal, the precept is void and 

affords no protection to the officer attempting to execute it; and, if its 

execution is resisted by the defendant, he is guilty of no offence against the 

law, though, in doing so, the person of the officer be assaulted.”); State v. 

Crocker, 1874 Del. LEXIS 16.
J-A26007-14

- 10 -

extending to minor scuffling which occasionally takes place during an 

arrest.”); Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super. 1981).3

Appellant first asserts that he did not create a substantial risk of bodily 

injury or resist by means justifying or requiring substantial force against 

him. In this respect, he highlights that Officer Fiore testified that Appellant 

tensed his upper body, pulled away from the officer, and started to turn 

away from Officer Fiore. Further, he points out that although a “brief 

struggle” occurred on the ground, Officer Fiore handcuffed Appellant without 

assistance. Appellant maintains that this minor scuffle does not rise to 

resisting arrest. In support, he relies on Rainey, supra.

In Rainey, an inebriated Rainey believed he had entered his friend’s 

apartment and used the bathroom therein. However, his friend had moved 

____________________________________________

3

 We are cognizant that the jury was instructed that running away, arguing 

with police, and minor scuffling with police is not resisting arrest. We add 

that the resisting arrest statute is “derived from” the Model Penal Code. 

Comment to 18 Pa.C.S. § 5104. The comment to the Model Penal Code 

provision reads in relevant part, 

This provision covers a person who, for the purpose of 

preventing a lawful arrest, “creates a substantial risk of bodily 

injury” or “employs means justifying or requiring substantial 

force to overcome the resistance.” This language exempts from 

liability nonviolent refusal to submit to arrest and such minor 

acts of resistance as running from a policeman or trying to 

shake free of his grasp. The policy judgment underlying this 

curtailment of coverage is that authorizing criminal punishment 

for every trivial act of resistance would invite abusive 

prosecution.

Comment to Model Penal Code § 242.2 (emphasis added). 
J-A26007-14

- 11 -

and no longer resided at the apartment. Rainey then passed out on the floor 

of the apartment. The resident of the apartment above telephoned police 

after hearing the toilet flush. Police responded and awakened Rainey to 

place him under arrest. Rainey attempted to leave but was restrained by 

the officer. A second officer then entered the apartment and placed Rainey 

against a wall and frisked him. That officer then transported the appellant to 

a police van. Upon reaching the police vehicle, Rainey attempted to flee. 

The officer grabbed the appellant and he “began to shake himself violently, 

to wiggle and squirm in an attempt to free himself of the officer's grasp.” 

Rainey, supra at 1149. 

A third officer arrived and struck Rainey in the head with a nightstick. 

Rainey continued to struggle, and one officer began to choke Rainey in an 

attempt to subdue him, but relented when Rainey could not breathe. The 

original officer who responded, and who had been interviewing the person 

who called police, returned to aid his fellow officers. The three officers were 

then able to handcuff Rainey. At trial, the testimony was that Rainey 

“merely attempted to squirm, wiggle, twist and shake his way free of their 

grasp.” Id. This Court found insufficient evidence to find Rainey guilty of 

resisting arrest.

In Appellant’s view, his actions were not as “violent or resistive as the 

actions of the defendant in Rainey.” Appellant’s brief at 30. Appellant adds 

that there was no proof of an underlying lawful arrest. He correctly notes 
J-A26007-14

- 12 -

that Officer Fiore testified that he did not inform Appellant that he was under 

arrest and that the officer’s initial attempt at handcuffing Appellant was not 

to place him under arrest, but was for purposes of a Terry frisk. According 

to Appellant, he was only placed under arrest after he struggled with the 

officer. Since the officer was not putting Appellant under arrest for 

disorderly conduct at the time he resisted, Appellant contends that his 

resisting arrest conviction is improper. Lastly, with respect to his resisting 

arrest charge, Appellant asserts that the officer did not have reasonable 

suspicion to conduct a Terry frisk or probable cause for the initial detention. 

Thus, the purpose for handcuffing him was not lawful and he could not be 

convicted of resisting arrest. 

The Commonwealth counters, without discussion, that Rainey is 

distinguishable. It adds that Rainey “has little precedential value.” 

Commonwealth’s brief at 21. According to the Commonwealth, this Court’s 

decisions in Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super. 1989), 

and Commonwealth v. Butler, 512 A.2d 667 (Pa.Super. 1986), support 

the verdict. In Lyons, deputy sheriffs attempted to arrest the defendant. 

Lyons, in an attempt to elude capture, “ran into the middle of Lycoming 

Creek and attempted to swim downstream with the current.” Lyons, supra

at 925. The temperature of the creek was frigid and it “had a slippery 

streambed and a swift current.” Id. Two deputy sheriffs pursued Lyons into 

the creek. One deputy sheriff, “after three unsuccessful attempts, managed 
J-A26007-14

- 13 -

to get a grip of [Lyons] who was kicking and struggling to get away.” Id. 

(italics in original). Two officers then secured Lyons, but he “went limp, 

pulled his feet underneath him, refused to walk, and became rigid.” Id. 

Thus, the sheriffs had to carry him. 

This Court opined that resisting arrest “does not require serious bodily 

injury. Nor does it require actual injury to the arresting officer.” Id. The 

panel set forth that sufficient evidence of resisting arrest may exist where 

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

arresting officer.” Id. The Lyons Court held that Lyons’ “struggle with the 

two deputies in the middle of a frigid stream with a rocky uneven bed was 

sufficient to meet that requirement.” Id. It added that the resisting arrest 

statute “includes the disjunctive phrase ‘or employs means justifying or 

requiring substantial force to overcome resistance.’ [Lyons’] actions 

unquestionably fall within the ambit of this portion of the statute. It took 

four deputy sheriffs to finally subdue appellant. Substantial force was thus 

required to overcome appellant's resistance to the arrest.” 

In Butler, the defendant snatched four gold chains from a woman’s 

neck in broad daylight and knocked her to the ground. The victim’s friend, 

who witnessed the robbery, screamed. A young man responded to the cry 

and gave chase. The victim and her friend then flagged down a police 

officer. The young male who chased Butler returned and informed the 

officer that the assailant was hiding behind a wall one block away. The 
J-A26007-14

- 14 -

officer went to that area, cornered Butler, and instructed him not to move. 

Butler, however, punched the officer and attempted to flee. Several other 

officers had to subdue the defendant. The Butler Court reasoned that, 

because “it took the assistance of other officers to subdue [Butler,]” and the 

officer testified that he was punched, the Commonwealth presented 

sufficient evidence of resisting arrest. 

We find that neither Lyons nor Butler is dispositive. In both cases, 

the defendant exercised more force and resistance. Further, in Lyons, there 

was no legitimate question as to the lawfulness of the arrest. Initially, we 

agree with Appellant that the evidence against him does not establish that 

he was being lawfully placed under arrest for disorderly conduct at the time 

Officer Fiore brought him to the ground. There is no testimony that 

Appellant was being arrested for disorderly conduct when he began to resist. 

Both Officer Fiore and Officer Hawkins testified that Appellant was subject to 

an investigative detention and Appellant was not being arrested for 

disorderly conduct. However, a person may also be convicted of resisting 

arrest if his or her conduct, with the intent of preventing an officer from 

discharging a duty, creates a substantial risk of bodily injury or resists to 

such a degree as to require substantial force to subdue the defendant. 

The question necessarily arises as to whether the officers were 

discharging their duty in performing a Terry frisk and whether the statute 

requires that the frisk be lawful in order to trigger the resisting arrest 
J-A26007-14

- 15 -

offense. We hold, consistent with the requirement of a lawful arrest, that an 

officer must be lawfully discharging the duty in question, which may include 

an investigative detention and Terry frisk. See Commonwealth v. 

Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (where officer had 

reasonable suspicion to conduct an investigative detention the defendant’s 

actions of struggling with the officer and striking him using his left and right 

shoulders and cursing was sufficient evidence of resisting arrest); 

Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa.Super. 2006) 

(sufficient evidence to convict of resisting arrest where police had reasonable 

suspicion to detain individual exiting a convenience store and defendant 

pushed an officer while carrying a handgun and then resisted apprehension 

by violently struggling with an officer, mule-kicked the officer twice, and 

attempted to retrieve his own weapon); Commonwealth v. Jackson, 907 

A.2d 540, 546 (Pa.Super. 2006) (defendant kicked officer during lawful 

investigative detention); Commonwealth v. Maxon, 798 A.2d 761 

(Pa.Super. 2002) (absence of reasonable suspicion for investigative 

detention rendered evidence insufficient for resisting arrest conviction). 

An investigative detention subjects an individual to a stop and short 

period of detention. Commonwealth v. Downey, 39 A.3d 401, 405 

(Pa.Super. 2012). This seizure does not involve actions that are so coercive 

as to comprise the equivalent of an arrest. Id. To conduct an investigative 

detention, police must have reasonable suspicion of criminal activity. Id. 
J-A26007-14

- 16 -

“[T]his standard is met ‘if the police officer's reasonable and articulable 

belief that criminal activity was afoot is linked with his observation of 

suspicious or irregular behavior on behalf of the particular defendant 

stopped.’” Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa.Super. 

1992). It is well-settled that “[m]ere presence near a high crime area or in 

the vicinity of a recently reported crime, is not enough to warrant a Terry

stop.” Id. Rather, police “must observe irregular behavior before he 

initiates a stop and, concurrently to his observation, he must hold a belief 

that criminal activity is afoot.” Id. We determine what level of interaction 

occurred under a totality of the circumstances test. Commonwealth v. 

Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).

In the present case, police received a call of shots fired in a high crime 

area at 3:30 a.m. No description of the individual or individuals who fired 

the shots was provided. Upon responding to the area, police observed 

Appellant and another individual in a legally parked car with the dome light 

on. When the police approached, the two men took a step or two away from 

the car. This combination of facts is insufficient to support a reasonable and 

articulable belief that Appellant and his companion were engaged in criminal 

activity. Police did not observe irregular or suspicious behavior by Appellant. 

Thus, the initial investigative detention was unlawful and cannot support the 

resisting arrest charge. Cf. Maxon, supra. 
J-A26007-14

- 17 -

Even assuming arguendo that the totality of the circumstances 

warranted the initial detention for a Terry frisk, we find that Appellant did 

not create a substantial risk of bodily injury or resist by means justifying or 

requiring substantial force to subdue him. Instantly, Appellant stiffened his 

upper body, and stepped and turned away from the officer. None of these 

actions rises to the level of creating a substantial risk of bodily injury. See 

Commonwealth v. Eberhardt, 450 A.2d 651 (Pa.Super. 1982). Further, 

they did not require or justify substantial force to overcome them. Of 

course, Appellant also “briefly struggled” with Officer Fiore after the officer 

took him to the ground. See N.T., 10/15/13, at 65. Probable cause for a 

lawful arrest may arise after an initial unlawful arrest, or in this case, an 

invalid investigatory detention. Cf. Commonwealth v. Jackson, 924 A.2d 

618 (Pa. 2007). 

In Jackson, 924 A.2d 618, a police officer saw Jackson with a group 

of men throwing dice on the street. Believing that the men were engaged in 

illegal gambling, the officer approached. Jackson fled, and the officer 

pursued. The officer caught Jackson, but Jackson punched him in the face 

and chest several times and eluded capture. However, the officer again was 

able to catch Jackson. Jackson kneed the officer in the groin, causing the 

officer to go to the ground. Jackson then attempted to wrestle the officer’s 

gun away from him. The officer, nonetheless, succeeded in overpowering 

Jackson and placed him under arrest. 
J-A26007-14

- 18 -

On appeal to this Court, Jackson challenged his resisting arrest 

conviction and a charge not relevant hereto. This Court reversed his 

resisting arrest conviction on the ground that there was no lawful arrest. 

Our Supreme Court granted allowance of appeal to determine whether “a 

defendant's assault on a police officer [which] occurs as the result of the 

officer's attempt to unlawfully arrest him, . . . may give rise to a lawful 

arrest, the resistance of which will support a charge of resisting arrest under 

18 Pa.C.S. § 5104.” Id. at 619–620. The High Court ruled that once 

Jackson first attacked the officer, the officer had probable cause to arrest 

him for aggravated assault and that Jackson’s continued fighting constituted 

resisting arrest. The Supreme Court’s Jackson decision is distinguishable 

since it involved more violent actions and comprised a scenario where the 

defendant resisted the officer’s attempts to arrest him during multiple 

encounters. Simply put, in Jackson, 924 A.2d 618, there was 

unquestionably probable cause to arrest the defendant for aggravated 

assault after the original significant scuffle, and the defendant continued to 

violently resist. 

While we agree that Officer Fiore was justified in using the amount of 

force he did, the facts viewed in a light most favorable to the Commonwealth 

establish only that a minor scuffle with Officer Fiore occurred. See Rainey, 

supra. This case is wholly dissimilar from the cases relied on by the 

Commonwealth, Lyons and Butler. 
J-A26007-14

- 19 -

We recognize that the resisting arrest statute “does not require the 

aggressive use of force such as striking or kicking of the officer.” Miller,

supra at 146; Commonwealth v. McDonald, 17 A.3d 1282, 1285 

(Pa.Super. 2011) (quoting Miller, supra). However, it does mandate that 

the forcible resistance used by the defendant involve some substantial 

danger to the officer. Miller, supra at 146. In this case, there is no 

testimony that Appellant punched, struck, kicked, spit upon, shoved, used 

his shoulders to strike, or used an amount of force justifying or requiring 

substantial force to place him in handcuffs. Compare Commonwealth v. 

Franklin, 69 A.3d 719 (Pa.Super. 2013) (defendant’s swinging of his fists at 

police and continually yanking his arms away from officer constituted violent 

and tumultuous behavior); McDonald, supra (resistance by defendant 

required deployment of taser); Commonwealth v. Thompson, 922 A.2d

926 (Pa.Super. 2007) (couples’ interlocking of arms and legs on the ground 

to prevent handcuffing required substantial force to pull them apart leaving 

officer exhausted); Stevenson, supra at 775 (defendant pushed officer, 

violently struggled with the officer, and mule-kicked him twice); Jackson, 

907 A.2d at 546 (defendant kicked officer); Lyons, supra (defendant kicked 

and struggled in freezing cold creek with deputy sheriffs requiring two 

sheriffs to subdue him); Commonwealth v. Guerrisi, 443 A.2d 818 

(Pa.Super. 1982) (defendant struck officer in the groin); Miller, supra at 

147 (defendant was “attacking police[,]” flailed his arms and upper part of 
J-A26007-14

- 20 -

his body in a rapid fashion, “push[ed] through” an officer, strained and 

struggled against the police and bruised an officer’s leg). In short, we 

conclude that Appellant’s actions did not justify or require substantial force 

to overcome his limited resistance. Accordingly, the Commonwealth failed 

to prove that Appellant statutorily resisted arrest, and he is entitled to 

discharge on that count. 

Having addressed Appellant’s sufficiency claims, we now examine his 

first issue. Appellant contends, and we agree, that the trial court erred in 

instructing the jury as to elements of disorderly conduct for which Appellant 

was not charged. In the present case, the Commonwealth only charged 

Appellant under 18 Pa.C.S. § 5503(a)(4). Nevertheless, the court issued a 

standard jury instruction that included elements of disorderly conduct with 

which Appellant was not charged. 

Specifically, the trial court instructed the jury that it could find 

Appellant guilty of disorderly conduct if it found that:

The defendant committed one of the following acts: That 

he either engaged in fighting or threatening or in violent or 

tumultuous behavior. Such conduct included actions and words 

that are directed at producing or inciting imminent lawless 

action, or an immediate violent response given the 

circumstances under which it occurred, or that the defendant 

made unreasonable noise.

You must consider the circumstances in which the 

Defendant is alleged to have made the noise in question to 

determine if it was outside conventional standards of organized 

society.
J-A26007-14

- 21 -

Then secondly, ladies and gentlemen, that the defendant 

did so, did one of those actions, with the intent to cause public 

inconvenience, annoyance or alarm, or by his actions recklessly 

created a risk of public inconvenience, annoyance or alarm, and 

that he persisted in such disorderly conduct after reason warning 

or request to desist.

The word public, as I have used it, means affecting or 

likely to affect persons in a place in which the public or 

substantial group has access.

N.T., 10/15/13, at 98-99. Critically, Appellant was not charged with 

disorderly conduct under the sections related to engaging in fighting or 

threatening or violent or tumultuous behavior. See Criminal Information, 

Second Count, 6/13/13 (Appellant “did, with the intent to cause public 

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, 

create a hazardous or physically offensive condition by any act which serves 

no legitimate purpose of the defendant. The defendant acted with the intent 

to cause substantial harm or serious inconvenience or did persist in his 

conduct after reasonable warning or request to desist.”); see also 18 

Pa.Crim.P. 5503(a)(1). Moreover, the Commonwealth did not charge 

Appellant with violating the provision of the disorderly conduct statute 

relative to noise. See 18 Pa.C.S. § 5503(a)(2). Rather, the criminal 

information in this matter pertained only to the aspect of the disorderly 

conduct statute relative to creating a hazardous or physically offensive 

condition. 18 Pa.C.S. § 5503(a)(4).

The Commonwealth’s argument that the court issued a standard jury 

instruction is a non-sequitur. A court may issue a standard jury instruction, 
J-A26007-14

- 22 -

but if it instructs a jury on crimes or elements not charged, it is error unless 

the crime for which the defendant is convicted is a lesser-included offense. 

Cf. Commonwealth v. Gouse, 429 A.2d 1129 (Pa.Super. 1981); compare 

also Commonwealth v. Shamsud-Din, 995 A.2d 1224 (Pa.Super. 2010). 

Here, we do not find that the disorderly conduct provision in question is a 

lesser-included offense of the other disorderly conduct charges since the 

elements of the differing disorderly conduct provisions are distinct. Cf. 

Commonwealth v. Brandon, 79 A.3d 1192 (Pa.Super. 2013). The court’s 

instruction was legal error. Accordingly, we reverse Appellant’s disorderly 

conduct conviction. 

Since we have found that insufficient evidence was introduced to 

establish resisting arrest, and that a new trial is necessary as to the 

disorderly conduct count, we need not reach Appellant’s final issue. We 

observe only that Appellant’s final challenge is to a suppression ruling, and 

because there was nothing found on his person or in his car, there was 

nothing to suppress. While in the early days of the American republic one 

could be successfully discharged based on an illegal arrest via a habeas 

corpus motion, see Commonwealth v. Alexander, 6 Binn. 176 (Pa. 1813), 

one cannot suppress an illegal detention. See Commonwealth v. 

Standen, 675 A.2d 1273, 1276 (Pa.Super. 1996) (“A person is not a 

suppressible fruit and any illegality of detention cannot deprive the 
J-A26007-14

- 23 -

government of the opportunity to prove guilt through the introduction of 

evidence wholly untainted by the police misconduct.”). 

Judgment of sentence reversed. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014