J-S51028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT W. KORTMAN

Appellant No. 40 MDA 2014

Appeal from the Judgment of Sentence December 5, 2013

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001970-2013

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:

FILED MAY 14, 2015

While I agree with the Majority that Kortman’s conviction on the 

charges of harassment and disorderly conduct must be reversed, I believe 

that viewing the evidence in the light most favorable to the Commonwealth 

as verdict winner, Kortman’s convictions of the charges of recklessly 

endangering another person and resisting arrest should be affirmed. 

Accordingly, I am compelled to concur in part and dissent in part to the 

Majority Memorandum.

The following evidence was produced at trial.

On April 19, 2012, at approximately 6:30 p.m., Kortman was parked in 

the West Reading Borough parking lot. Kortman was there pursuant to court 

order – the parking lot was the place ordered by another judge in Berks 
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County as the location where Kortman and his ex-girlfriend would exchange 

physical custody of their child. Kortman had either arrived early or his exgirlfriend was late, as, by 6:30, he had been waiting in the parking lot for 30 

– 45 minutes.

West Reading Police Sergeant Keith Phillips had finished his shift and 

was leaving for the day when he went into the parking lot. N.T. Trial, 

11/19-20/2013, at 58.1 He had noticed Kortman waiting in the parking lot 

and went over to Kortman’s car to see why he was there. Id. at 58-60. 

Sergeant Phillips was not in uniform, but was wearing a polo shirt that had a 

badge embroidered on it and which had the words “West Reading Police 

Department” embroidered on the left sleeve. Id. at 59. Sergeant Phillips 

identified himself as a police officer and asked Kortman to identify himself 

and to tell him why he had been in the parking lot.2 Id. at 61. Kortman 

declined to answer Sergeant Phillips’ questions. Id. In his testimony, 

Sergeant Phillips acknowledged that Kortman was under no obligation to 

____________________________________________

1 The notes of testimony are contained in one volume, although the trial 

took place over two days, November 19 and 20, 2013. Any citation to 

testimony on or after page 127 was from November 20, 2013.

2 Although Sergeant Phillips testified he thought Kortman’s activity was 

suspicious, he never claimed to have had a reasonable suspicion of criminal 

activity.
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respond, but the Sergeant called for uniformed police backup in order to 

compel response.3 Id. at 61-62.

While Sergeant Phillips confronted Kortman, Kortman called 9-1-1 to 

report that a person claiming to be a police officer, but who would not 

produce a badge, was harassing him. See Transcript of 9-1-1 call. The 

9-1-1 operator told Kortman to obtain the person’s license plate number. 

____________________________________________

3

From the direct examination of Sergeant Phillips:

Q: [A]t that point did Mr. Kortman believe you were a 

police officer?

A: No, I don’t believe so.

Q: So what happened?

A: He refused to talk to me.

Q: What did you do?

A: I said, okay, I’ll get some people that you will talk to 

then. And I went back to my car, and I called for the guys 

who were on duty to come over and just find out who he 

was.

Q: Why did you call for officers who were on duty to figure 

out who the individual was?

A: Well, they’re gonna show up in a marked police car and 

uniform. So sometimes I guess that makes a difference to 

some people. So I wanted to make sure that that 

happened.

N.T. Trial, 11/19/2013 at 62-63.
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Id. Kortman attempted to take a cell phone picture of Sergeant Phillips’ 

pickup truck, but Sergeant Phillips backed up toward Kortman and then left 

the scene. N.T. Trial, 11/20/2013, at 157.

Almost immediately thereafter, Police Officer Marc Oxenford, in full 

uniform and driving a marked police car, arrived at the parking lot. Id. at 

131. No one other than Kortman was there. Id. at 129. Officer Oxenford 

testified he was responding to a report of a fight in progress.4Id. Officer 

Oxenford attempted to talk with Kortman to find out why he had called 9-1-

1, however, Kortman did not respond because he was still on the phone with 

9-1-1. Id. at 130. Officer Oxenford’s marked vehicle was parked 

approximately four to five feet in front of Kortman’s BMW. Id. at 63, 119. 

Sergeant Phillips returned to the scene. It is unclear precisely where 

he parked, but Kortman testified he might have been able to get around the 

cars. Id. at 161. Police Officer Edward DeLozier, Jr., also in full uniform 

and driving a marked vehicle, arrived in response to Sergeant Phillips’ 

request for backup. Id. at 103-104. When Officer DeLozier arrived, he saw 

what appeared to be a public argument between Kortman and the other two 

officers. Id. at 102. A physical confrontation ensued in which the police 

officers attempted to get Kortman out of his car and question him. See id., 

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4

It is unclear who claimed there was a fight in progress. The 9-1-1 

transcript of Kortman’s call contains no claim of a fight and there are no 

indications of any other calls to the police.
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generally. At some point during the argument, Kortman started his car. As 

the officers attempted to reach into Kortman’s car to turn it off, Kortman 

attempted to put the car into gear. Id. at 107. The car lurched forward 

approximately three feet, and then stalled.5Id. at 107, 122-23. The 

movement of the car forced the officers to jump back out of the way to avoid 

being hit or having their feet run over. Id. at 106-107. Officer Oxenford 

testified that had Kortman been able to get the car fully engaged, “we would 

have got run over.” Id. at 147.

Specifically, Officer DeLozier testified as follows:

A: What happened is I told him to get out of the car. He 

stepped back in the car. He motioned – I don’t know if it’s a key 

or push start, but I saw him go towards the steering wheel. I 

heard the engine start. That was after I told him to get out of 

the car. I told him to get out of the car again as I stepped in to 

try to turn off the key to the engine. As I stepped in with my 

right foot, the car went forward. I jumped back. Officer 

Oxenford was right behind me, if you will, to my right. And as 

the car went forward, I jumped back. At that point, I told him 

he was under arrest, get out of the car.

Q: And where is your body positioned at the precise moment Mr. 

Kortman’s car goes forward?

A: I am stepping into his car. So my right foot is just inside of 

his car, and I’m moving towards the area where I think that the 

keys would be.

Q: Where is your right hand?

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5 Kortman’s car had a manual transmission.
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A: It’s in front of the steering wheel or moving towards that 

direction. I don’t know how far my hand was. I know I didn’t 

make contact with the keys.

Q: Where is your left hand?

A: To the best of my knowledge, it would be on the – it would be 

[on] the front quarter panel of the driver’s door. So the driver’s 

door is open, and I’m stepping in. I’m left-handed, but I 

stepped in with my right foot and braced myself with my left arm 

and tried to reach in with the right arm to grab the keys.

Q: And where is your head at this that point? Is it inside or 

outside the car?

A: It’s partially both, I would say. It’s hard to know the exact 

location. I know I stepped in. And once it moved, I jumped 

back. I jumped back right away.

Q: How would you best describe the movement of that car?

A: Abrupt, fast, and it scared me. As I stepped in and moved, 

the car went about 3 feet forward. And I jumped back out of 

maybe some reaction, but I can also say fear a little bit when 

that happened.

Q: Why were you afraid?

A: Because he refused to come out. And then when I told him to 

come out and he starts the car and I tell him to come out again 

and he refused to do so and I reach in to stop the – to turn the 

keys off and the car lurches forward, at that point I don’t know 

what Mr. Kortman’s capable of because he’s not listening to any 

of my commands and now the car’s moving forward.

N.T. Trial, 11/19/2013, at 105-107.

At this point, the officers told Kortman he was under arrest. Id. at 

108. Officer DeLozier reached into the car to pull Kortman out, but Kortman 

pulled back and broke free of his grip. Id. Kortman reached back to the 

steering column as if to try to start the car again. Id. at 109. Both officers 
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reached in again, this time pulling Kortman largely out of the car. Kortman 

put his foot on the ground and braced himself against the officer, who then 

pulled Kortman to the ground and handcuffed him. Id. at 109-110.

Other than admitting that he might have been able to move his car 

around the police vehicles and leave the scene, Kortman denied all other 

aspects of the Commonwealth’s case. He claimed he fully complied with 

Sergeant Phillips’ request to identify himself, giving the Sergeant his driver’s 

license, registration and insurance card.6 Id. at 163. He stated the car 

never even lurched because he never turned the car on. Id. at 164. He did 

not describe the amount of force needed to remove him from his car, but 

claimed the officers used excessive force in subduing him. Id. at 166.

Regarding reckless endangerment, based upon the above evidence, 

the majority concludes “...the car lurched forward by stalling out. This 

occurs in a manual transmission vehicle when the vehicle is in gear and a 

person removes his or her foot from the clutch too quickly without pressing 

the gas pedal adequately. Hence, the evidence establishes that the car 

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6

This testimony is contradicted by the 9-1-1 call placed by Kortman in which 

he was adamant he had no idea who the person was who was accosting him. 

Kortman did not explain why he would produce his driver’s license, 

registration and insurance card to a stranger. Neither did he explain why, 

having produced his identification, he would then call 9-1-1, reporting he 

was being accosted by someone claiming to be a police officer.
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lurched forward and stalled because Appellant’s car was on and in gear and 

his foot was no longer on the clutch.” Majority at 8. 

The jury clearly rejected Kortman’s testimony that the car never 

moved because he never turned on the car. Accepting that Kortman started 

his car and put it into gear, the Commonwealth was entitled to the 

reasonable inference he meant to drive it. This inference is supportable by 

the fact his car moved forward. However, having accepted the jury’s initial 

determination, and acknowledging that the Commonwealth is entitled to all 

reasonable inferences drawn from the facts,7the majority improperly rejects 

that reasonable inference by unilaterally determining that Kortman did not 

attempt to drive his car. Rather, the majority asserts the explanation for 

the car moving is that Kortman removed his foot from the clutch, while the 

car was in gear, allowing the car to stall and lurch forward. This 

interpretation of the evidence represents improper fact-finding by the 

majority and is not warranted given our standard of review. See 

Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014) 

(Appellate court may not weight the evidence and substitute its judgment for 

the fact-finder’s.)

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7 Majority at 8, citing Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. 

Super. 2013).
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The majority determines it was a virtual impossibility for any of the 

police to be at risk for serious bodily injury because Kortman never 

attempted to drive his car. Majority at 8-9. The jury was entitled to believe 

the police officers’ testimony and give it whatever weight might be 

appropriate. By convicting Kortman of REAP, the possibility of serious bodily 

injury became, essentially, a finding of fact. Considering the testimony and 

the reasonable inferences drawn therefrom, it cannot be said as a matter of 

law, the officers were not at risk of suffering serious bodily injury. By 

disregarding the jury’s determination, the majority has substituted its 

judgment for the fact-finders’ and has again engaged in improper factfinding. See Thompson, supra; Commonwealth v. Grant, 813 A.2d 726, 

734 (Pa. 2002) (Appellate courts do not act as fact-finders, since to do so 

would require an assessment of credibility of the testimony, and that is 

clearly not the appellate court’s finction.)

Having properly determined Kortman put his car in gear and 

attempted to drive away while Office DeLozier was reaching inside, the jury 

was allowed to conclude those actions were evidence of Kortman’s 

recklessness. Accordingly, I find that viewing the evidence in the light most 

favorable to the Commonwealth as verdict winner, as we are required to do, 

provides sufficient evidence to support Kortman’s conviction of REAP.8

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8 The majority also comments on the likelihood that the encounter between 

the police officers and Kortman constituted an unlawful investigative 

(Footnote Continued Next Page)
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I also find Kortman’s conviction of resisting arrest9to be supported by 

the evidence. Kortman specifically claims there was insufficient evidence to 

show the police were required to use substantial force to overcome his 

resistance. I note that the statute does not criminalize all resistance to 

arrest, rather, only such resistance that requires substantial force to 

overcome.10 “Substantial”, however, is not defined by statute. Accordingly, 

looking to the common understanding of the word,11 substantial is defined as 

(Footnote Continued) _______________________

detention. Majority at 10, n.2. I note that at the beginning of the 

encounter, it is undisputed that Kortman called 9-1-1 and requested police 

assistance. Whether the encounter was unlawful was never determined 

because no motion to suppress was filed and the issue was never raised, 

argued or briefed. We have no knowledge why this issue was unexplored. 

While Kortman might be entitled to relief on such grounds, that would only 

be appropriate after the issue had been thoroughly reviewed through a PostConviction Relief Act petition.

9 Resisting arrest is defined as:

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.

10 In general, a “minor scuffle” is insufficient to support a charge of resisting 

arrest. Commonwealth v. Rainey, 426 A.2d 1148, 1150 (Pa. Super.

1981).

11 See 1 Pa.C.S. § 1903 (a), which states, in relevant part: “Words and 

phrases shall be construed according to rules of grammar and according to 

their common and approved usage.”
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ample or considerable. See Random House Kernerman Webster’s College 

Dictionary, 2010; American Heritage Dictionary of the English Language, 5th

Edition, 2010.

Here, the evidence demonstrated that it took the efforts of two police 

officers to pry Kortman from his car, take him to the ground, and handcuff 

him. The trial court cites Officer DeLozier’s testimony on pages 108-110 to 

support the jury’s determination. In addition to the information cited by the 

trial court, Officer DeLozier also testified that Kortman attempted to restart 

his car during this struggle, thereby adding additional danger to the 

situation. It must also be remembered that the police officers were 

attempting to remove Kortman from the close confines of the front seat of 

an automobile. The testimony described multiple efforts of two police 

officers, ultimately requiring Officer DeLozier to grab Kortman by the back of 

his neck, forcefully pulling him from the car, and then requiring two officers 

to force Kortman to the ground.

There is no case law describing the efforts to arrest and control an 

unwilling defendant in close quarters. However, the force required to 

overcome passive resistance can be considered substantial. This Court’s 

decision in Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. 

2007), is instructive. 

The only evidence cited in Thompson to support the use of 

substantial force was the following: 
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Officer Ewing testified that she struggled to pull Appellant apart 

from her husband with whom she had interlocked her arms and 

legs. Although Officer Canfield verbally commanded Appellant 

several times to put her hands behind his back, she refused to 

obey and held her arms tightly beneath him. Officer Canfield 

testified that his attempts to restrain the couple to place them 

under arrest left him “exhausted.”

Thompson, 922 A.2d at 928.12 

Thompson demonstrates that actively fighting a police officer is not 

required to prove resisting arrest. Accordingly, I believe the jury was 

entitled to draw the same inferences for the necessity of the use of 

substantial force herein.

I suggest other cases decided by our Court support the instant verdict. 

In Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997), where a 

squirming and struggling woman who kicked a police officer in the shin, 

required substantial force to overcome. The Wertelet court opined, 

“Examples of ‘means’ which would undoubtedly satisfy the Code by requiring 

substantial force to overcome would be any kind of significant physical 

resistance, including punching, shoving, squirming, biting or kicking.” Id. at 

211 (emphasis added).

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12 I do not believe that “exhausted” is a magic word, demonstrating the 

necessity of the use of substantial force. Rather, I believe a jury is entitled 

to look at the totality of the circumstances to draw reasonable conclusions 

and inferences. In Thompson, the jury could well picture the situation and 

infer the amount of force needed to pry apart the passive resistors. 
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In Commonwealth v. Franklin, 374 A.2d 1360, 1363 (Pa. Super. 

1977), a panel of our Court concluded there “can be little doubt” that 

evidence a woman used loud and abusive language and required three 

officers to handcuff her, was sufficient to support resisting arrest.13 In 

Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011), a defendant 

twisted his shoulders such that his shoulders hit a police officer who was 

trying to take the defendant’s hands from his pockets and arrest him. Such 

action was sufficient to support resisting arrest. In Commonwealth v. 

Clark, 761 A.2d 190 (Pa. Super. 2000), a defendant fled police after being 

pepper sprayed,14 but slipped and fell, whereupon a police officer rolled over 

on the ground with the defendant. This constituted substantial force. Most 

recently, Commonwealth v. McDonald, 17 A.3d 1282 (Pa. Super. 2011), 

related circumstances almost identical to those found in Clark, including the 

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13 Regarding the use of substantial force, the specific evidence cited in 

Franklin was as follows:

Another struggle ensued between the officers and the appellant 

as they attempted to place handcuffs on her and take her out to 

the patrol car. The officers succeeded in getting one handcuff on 

the appellant, but were having difficulty securing the other one. 

Officer Kibler, who was one of the officers in the house at this 

time, testified that it took three police officers to finally get the 

handcuffs on the appellant.

Franklin, 922 A.2d at 1362.

14 As stated by the Majority, flight alone does not constitute resisting arrest. 

Commonwealth v. Miller, 475 A.2d 145 (Pa. Super. 1984).
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defendant’s flight, the defendant slipping and falling, and a tussle on the 

ground.

In the present case, the jury was properly charged as follows:

A person cannot commit [resisting arrest] unless he or she 

creates a substantial risk of bodily injury or resists by means 

justifying or requiring substantial force to overcome his or her 

resistance. Thus, you cannot find the defendant guilty if you find 

that he merely scuffled with or argued with the police officer.

N.T. Trial, 11/20/2013, at 205.

I believe the evidence presented instantly is comparable to the 

evidence cited in the above cases. In light of the this legal precedent, and 

applying our well established standard of review, I agree with the trial court 

that the jury could conclude that the effort described in the testimony 

represented more than a mere scuffle and constituted the use of substantial 

force. Therefore, I must dissent from the Majority on this issue.

As noted, although I respectfully dissent from the Majority’s decision 

regarding the disposition of the charges on REAP and resisting arrest, I am 

in full agreement with the Majority regarding the dismissal of the charges of 

harassment and disorderly conduct.

Accordingly, I concur in part and dissent in part.