J-A13030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH PEAIR GREGORY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 998 WDA 2023

Appeal from the Judgment of Sentence Entered June 28, 2023

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0002345-2022

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY SULLIVAN, J.: FILED: July 15, 2024

Joseph Peair Gregory (“Gregory”) appeals from the judgment of 

sentence following his jury convictions of aggravated assault, escape, resisting 

arrest, false identification to law enforcement, possession of a controlled 

substance, and possession of drug paraphernalia, and his non-jury convictions 

of the summary offenses of criminal mischief and operating a vehicle without 

inspection.1 For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter from 

our review of the certified record. City of Erie Patrolman Terrance Dawdy 

(“Patrolman Dawdy”) and Corporal Dustin Landfried (“Corporal Landfried”) 

were on routine patrol in the early evening hours in July 2022, when they 

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1 See 18 Pa.C.S.A. §§ 2702(a)(3), 5121(a), 5104, 4914(a), 35 P.S. §§ 780-

113(a)(16), (32), 18 Pa.C.S.A. § 3304(a)(2), 75 Pa.C.S.A. § 4703(a)(1).
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observed a vehicle, later determined to be driven by Gregory, with an expired 

registration sticker. See N.T., 4/12/23, at 21-23; N.T., 4/13/23 (morning 

session), at 13-14. Corporal Landfried activated the marked police car’s lights 

and sirens and effected a motor vehicle stop. See N.T., 4/12/23, at 23; N.T.,

4/13/23 (morning session), at 14. Both police officers were in uniform with 

their body cameras (“body cams”) and the police car’s dashboard camera 

(“dash cam”) activated. See N.T., 4/12/23, at 22, 25. As the officers

approached the vehicle, a second police car occupied by Patrolman Luke

DeHart (“Patrolman DeHart”), Sergeant Bielak (“Sergeant Bielak”), and 

Patrolman Rhodes (“Patrolman Rhodes)2 arrived at the scene. See id. at 27-

33.

After Gregory gave Corporal Landfried his vehicle and driver 

identification, Corporal Landfried asked him to get out of the car and received 

Gregory’s permission to search the vehicle. See Commonwealth’s Exhibits 1

and 4 (Body Cam Videos of Patrolman Dawdy and Corporal Landfried).

Patrolman DeHart, Sergeant Bielak, and Patrolman Rhodes, stood with 

Gregory in front of one of the police vehicles during the search. See 

Commonwealth Exhibit 2 (Dash Cam Video). When Corporal Landfried 

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2 Sergeant Bielak and Patrolman Rhodes’s first names are not contained in the 

certified record.
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discovered documents in the car which showed Gregory had given him false 

identification information, he asked the other officers to detain Gregory. See 

Commonwealth Exhibit 3 (Body Cam Video of Patrolman DeHart).

Gregory began running away. See Commonwealth Exhibits 2 and 3 

(Dash Cam Video and Body Cam Video of Patrolman DeHart); see also N.T., 

4/12/23, at 42-43. Patrolman DeHart chased after him, tackling Gregory; 

during the “take-down,” Patrolman DeHart injured his elbow. See id. at 42-

45. Other officers came to assist Patrolman DeHart, and Gregory struggled 

with the four police officers who were attempting to handcuff him. See id. 

Even after the police officers forcibly handcuffed him, Gregory continued to 

try to push himself up and away from the officers. See id.

Following an April 2023 jury trial, the jury convicted Gregory of the 

above-cited offenses, other than the summary offense of which the trial court 

convicted him. The trial court sentenced Gregory to an aggregate sentence 

of two to five years in prison to be followed by one year of probation. Gregory 

filed post-sentence motions, which the trial court denied. The instant, timely 

appeal followed.3 

On appeal, Gregory raises three issues for our review:

1. Did the Commonwealth present sufficient evidence to sustain 

[Gregory’s] conviction for aggravated assault as the evidence 

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3 Gregory and the trial court complied with Pa.R.A.P. 1925.
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of record does not establish [Gregory] acted intentionally or 

knowingly or that [Officer DeHart] sustained bodily injury?

2. Did the Commonwealth present sufficient evidence to sustain 

[Gregory’s] conviction for resisting arrest as [Gregory’s] 

actions did not create a substantial risk of bodily injury or 

employ means requiring substantial force to overcome?

3. Did the trial court illegally subject [Gregory] to the heightened 

penalty for simple possession of marijuana where the facts 

supported a conviction for possession of a small amount of 

marijuana [“SAM”]?

Gregory’s Brief at 8 (capitalization regularized).

In his first two issues, Gregory challenges the sufficiency of the evidence 

underlying his convictions for aggravated assault and resisting arrest. See 

Gregory’s Brief at 20-27.

Pertinently:

[w]e review claims regarding the sufficiency of the evidence by 

considering 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. Further, a conviction may be 

sustained wholly on circumstantial evidence, and the trier of fact—

while passing on the credibility of the witnesses and the weight of 

the evidence—is free to believe all, part, or none of the evidence. 

In conducting this review, the appellate court may not weigh the 

evidence and substitute its judgment for the fact[]finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal 

citations and quotation marks omitted). A defendant commits aggravated 

assault of a law enforcement officer when he “either attempted to cause, or 

intentionally or knowingly caused, bodily injury to [the officer].” 
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Commonwealth v. Brown, 212 A.3d 1076, 1084 (Pa. Super. 2019); see 

also 18 Pa.C.S.A. §§ 2702(a)(3), (c)(1). The Commonwealth is not required 

to prove the officer was injured, only that the defendant attempted to cause 

injury. See id. “The Commonwealth may prove a defendant’s intent to inflict 

injury by circumstances which reasonably suggest his intention.” Id. 

(citations and internal quotation marks omitted).

An individual resists arrest when

with the intent of preventing a public servant from effecting a 

lawful arrest . . . the person creates a substantial risk of bodily 

injury to the public servant . . . or employs means justifying or 

requiring substantial force to overcome the resistance.

18 Pa.C.S.A. § 5104. This Court has stated:

[A] valid charge of resisting arrest requires an underlying lawful 

arrest, which, in turn, requires that the arresting officer possess 

probable cause. Section 5104 criminalizes two types of conduct 

intended to prevent a lawful arrest: the creation of a substantial 

risk of bodily injury to the officer or anyone else or means 

justifying or requiring a substantial force to overcome.

Commonwealth v. Clemens, 242 A.3d 659, 666 (Pa. Super. 2020) (internal 

citations and quotation marks omitted).

Gregory first maintains the evidence was insufficient to sustain his 

conviction for aggravated assault. See Gregory’s Brief at 20- 25. Gregory 

argues there was “no evidence . . . [he] intentionally sought to cause bodily 

injury to [Patrolman DeHart].” Id. at 22. Gregory claims it was not 

“practically certain” his action in attempting to escape would cause bodily 
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injury to an officer. See id. at 23. Instead, Gregory contends Patrolman 

DeHart suffered the injury “because he chose to subdue [Gregory] in the 

manner that he did.” Id. Lastly, Gregory avers Patrolman DeHart’s “elbow 

injury did not constitute ‘bodily injury’ as contemplated by the statute.” Id.

The trial court disagreed, explaining:

[a]t trial, the jury saw the video of [Gregory’s] behavior, 

and heard Officer DeHart describe the injury to his elbow. The 

jury thereafter concluded that [Gregory] was guilty of aggravated 

assault. The jury was given the legal requirements for aggravated 

assault and "bodily injury”, and obviously concluded that Officer 

DeHart suffered such injury. The [trial c]ourt therefore concludes 

that the jury had a reasonable basis to find [Gregory] guilty of 

aggravated assault. 

Trial Court Opinion and Order, 8/19/23, at 2.

This Court has thoroughly reviewed both the testimony and the body 

cam videos and finds no error in the trial court’s denial of Gregory’s sufficiency 

claim. The videos demonstrate Gregory chose to try to escape by pushing 

through three police officers and running. See Commonwealth Exhibits 2 and 

3 (Dash Cam Video and Body Cam Video of Patrolman DeHart). Gregory 

should have foreseen that one of the officers may sustain bodily injury after 

Gregory chose to flee and the officers pursued him. We reject Gregory’s 

argument Patrolmen DeHart was responsible for his own injury because of the 

“manner” in which he attempted to recapture Gregory; it is certainly not for 

Gregory to prescribe the manner in which a fleeing suspect shall be subdued. 

Lastly, we note both the videos and testimonial evidence show Officer DeHart 
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bleeding following Gregory’s capture, and he testified his elbow remained 

bruised and painful for over one week. See id.; see also N.T., 4/12/23, at 

44-45, 48. The evidence was sufficient to sustain Gregory’s conviction for 

aggravated assault of an officer. See Brown, 212 A.3d at 1084 (holding the 

evidence was sufficient to sustain a conviction pursuant to 18 Pa.C.S.A. § 

2702(a)(3) where defendant was hostile, argumentative, refused to obey 

commands, and punched an officer in the chest); see also Commonwealth 

v. Hatch, 314 A.3d 928, 933-34 (Pa. Super. 2024) (reversing the trial court 

and holding evidence was sufficient to state a prima facie case under 18 

Pa.C.S.A. § 2702(a)(3) where defendant screamed at the officer and slammed 

a screen door to prevent the officer’s entry into her home, hitting the officer’s

shoulder, then while he attempted to detain her, pushed him, and swung at 

his face, scratching him). Gregory’s first issue does not merit relief.

Gregory also alleges the evidence was insufficient to sustain his 

conviction for resisting arrest. See Gregory’s Brief at 25-27. Gregory does 

not dispute that the police had probable cause to arrest him. See id. Further, 

Gregory acknowledges he attempted to escape from police, and once 

recaptured, “kept trying to get away, push his way off the ground, and did not 

immediately put his hands behind his back.” Id. at 26. However, because 

the police were able to quickly subdue him, he maintains his behavior did not 

constitute resisting arrest but rather a mere “scuffle.” Id. at 26-27.
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The trial court disagreed:

[t]he jury watched on video the interaction between the 

police and [Gregory], including scenes of several officers 

struggling with [Gregory]. The jury thereafter concluded that 

[Gregory’s] actions constituted resisting arrest. The [trial c]ourt 

finds that there was sufficient evidence to support the jury’s 

decision.

Trial Court Opinion and Order, 8/19/23, at 3.

The record and relevant law support Gregory’s conviction. We have 

reviewed the videos which show that, upon hearing he was going to be 

detained, Gregory immediately broke into a run, and pushed past three police 

officers. See Commonwealth Exhibits 1, 2, and 3 (Body Cam Video of 

Patrolman Dawdy, Dash Cam Video, Body Cam Video of Patrolman DeHart). 

When tackled, Gregory refused to comply with police commands, keeping his 

arms under his stomach and pushing up to try to dislodge the officers. See 

id. It took two police officers to get Gregory’s hands in a position to be 

handcuffed and he struggled with the officers throughout the process. See 

id. Even when in handcuffs, Gregory continued to try to push up and get 

away and it required four police officers, two holding his arms, and two sitting 

on his calves, to subdue him. See id. This evidence is sufficient to sustain a 

conviction for resisting arrest. See Clemens, 242 A.3d at 667 (holding the 

evidence was sufficient to sustain a conviction for resisting arrest where police 

had probable cause to arrest and where appellant refused to leave his vehicle 

requiring the police to physically extract him); Commonwealth v. Coleman, 
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19 A.3d 1111, 1118 (Pa. Super. 2011) (holding the evidence was sufficient to 

sustain a conviction for resisting arrest where defendant refused to remove 

his hand from his pocket and “struggled” with the police officer when he tried 

to remove it); Commonwealth v. McDonald, 17 A.3d 1282, 1285-86 (Pa. 

Super. 2011) (holding the evidence was sufficient to sustain a conviction for 

resisting arrest where defendant tried to flee the scene; it took multiple police,

officers to hold him down; defendant kept trying to push up; and police had 

difficulty handcuffing him). Gregory’s second issue does not merit relief.

In his third issue, Gregory claims his sentence for simple possession of 

marijuana is illegal. See Gregory’s Brief at 27-29. Gregory admits that,

contrary to the rules of issue preservation,

4 he is raising this issue for the first 

time on appeal, but maintains it is a non-waivable, legality challenge. See id. 

at 27-28. Specifically, while acknowledging his sentence of one year of 

probation is within the statutory limits, Gregory argues his sentence for simple 

possession of marijuana is nonetheless illegal because the evidence at trial 

better supported a conviction for SAM. See id. at 28-29. To support his 

challenge to the legality of sentence, Gregory relies on this Court’s decision in 

Commonwealth v. Tisdale, 100 A.3d 216, 219 (Pa. Super. 2014). However,

this reliance is misplaced.

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4 See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii).
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Tisdale is not a legality of sentence case. See id. at 217. In Tisdale, 

the Commonwealth charged Tisdale with possession with intent to deliver 

(“PWID”) and conspiracy. See id. at 218. The trial court acquitted Tisdale of 

PWID but convicted him of a non-charged offense, simple possession of 

marijuana. See id. Tisdale objected to the verdict, arguing that both simple 

possession and SAM were lesser-included offenses of PWID and based upon 

the stipulated weight of the marijuana in question, the court should have 

convicted him of SAM. See id. This Court agreed, holding that under the 

specific/general rule the Court should have convicted Tisdale of PWID. See 

id.

The instant matter is simply inapposite. Here, the Commonwealth 

charged Gregory with simple possession of marijuana. See Criminal 

Information, 11/7/22, at 2 (unnumbered). The jury convicted Gregory of 

simple possession of marijuana. See N.T., 4/13/23 (afternoon session), at 5. 

Following the reading of the verdict, Gregory moved for a judgment of 

acquittal only as to the aggravated assault charge. See id. at 6-7. In his 

post-sentence motions, Gregory again moved for judgment of acquittal as to 

aggravated assault and challenged the sufficiency of the evidence underlying 

his escape, resisting arrest, and criminal mischief charges. See Gregory’s 

Post-Sentence Motion, 7/3/23, at 3-7. He did not raise any challenge to his 

conviction for simple possession. See id. Gregory does not cite to any legal 
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support for his argument that it was illegal for the trial court to sentence him 

on a charge that the jury convicted him of when he never challenged the 

verdict of the specific charge. See Gregory’s Brief at 27-29. Thus, we 

conclude Gregory’s final issue is a waivable challenge to the legality of 

sentence and Gregory waived the claim by not raising it below or in his Rule 

1925(b) statement. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii).

Gregory’s claims are either waived or not meritorious. Accordingly, we 

affirm the judgment of sentence.

Affirmed. 

DATE: 07/15/2024