COMMONWEALTH vs. RODERICK LENDER.

GRASSO, J. Challenging the sufficiency of the evidence at his jury-waived trial, the defendant appeals from his conviction of resisting arrest. [Note 1] See G. L. c. 268, § 32B. He also maintains that the judge relied on improper factors or otherwise impermissible information in sentencing. We affirm.

1. Resisting arrest. Shortly after 2 A.M. on August 19, 2002, State Trooper Eric Telford, who was in a marked cruiser and in

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full uniform, observed a black Honda Civic automobile swerving between lanes for a distance of one-quarter mile on Route 99 between Everett and Charlestown. Telford activated the cruiser's blue lights and siren from one car length behind, but the Honda did not stop until it pulled into a gasoline station one-quarter mile away. Telford called for backup and then approached. He observed that all the windows of the Honda were rolled down and three people were inside, including the defendant, who was in the driver's seat. Telford smelled an odor of alcohol and freshly burned marijuana emanating from the vehicle.

When Telford ordered the defendant from the vehicle, the defendant rolled his eyes and would not comply. Telford observed that the defendant's eyes appeared bloodshot. At Telford's second command to get out, the defendant reluctantly exited. Telford directed the defendant to the rear of the vehicle, out of the view of the other two occupants. From this vantage, Telford could smell an odor of alcohol coming from the defendant and an odor of burnt marijuana on the defendant's clothing. He attempted to pat frisk the defendant, but the defendant twisted away and said that he knew his rights and that he need not comply.

Telford again attempted a patfrisk and the defendant again attempted to twist away. At that point Telford grabbed the defendant's arm and turned him around. The defendant was struggling with Telford, resisting attempts to pat him down, refusing to let Telford put him on the ground, and refusing to put his arms together to be handcuffed. Telford and the defendant fell to the ground in the struggle, and Telford secured the defendant on the cement surface of the gasoline station and handcuffed him.

After handcuffing the defendant, Telford tried to place him in the back of the cruiser, but the defendant resisted. The defendant's resistance to being placed in the cruiser occupied a span of forty-five seconds to one minute and did not cease until Telford shut the cruiser door with the defendant inside.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979), the evidence presented by the Commonwealth established that,

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acting under color of his official authority, Trooper Telford (1) seized the defendant, (2) with the intention to effect an arrest, and (3) the seizure was so understood by the defendant. See Commonwealth v. Grandison, 433 Mass. 135 , 145 (2001). Moreover, the quantum of resistance by the defendant was sufficient to amount to "physical force or violence" against the officer or a means creating "a substantial risk of causing bodily injury" to the officer. Id. at 144-145 & n.18.

The defendant first contends that Telford lacked a basis to perform a patfrisk of the defendant. In assessing the sufficiency of the evidence to support a charge of resisting arrest, the relevant inquiry is not whether the stop, frisk, and arrest would withstand a motion to suppress evidence. Rather, the proper focus is whether, at the time of the interaction, the officer, acting under color of authority, arrested the defendant, and whether the defendant resisted that arrest with force or violence or a means creating a substantial risk of causing bodily injury to the officer. See ibid. Even were a court to determine later that the initial patfrisk and subsequent arrest lacked reasonable suspicion or probable cause, the absence of either does not provide a defense to the charge of resisting arrest. [Note 2] See Commonwealth v. Moreira, 388 Mass. 596 , 601 (1983) (absent use of excessive force, defendant has no right to resist even unlawful arrest); Commonwealth v. Gomes, 59 Mass. App. Ct. 332 , 341-343 (2003).

We agree with the defendant that the resisting arrest statute applies to arrests and not to patfrisks. See Commonwealth v. Pagan, 63 Mass. App. Ct. 780 , 784 (2005). Considered in their entirety, however, the facts reveal more than mere resistance to a patfrisk. The defendant resisted not only Telford's initial attempt to pat frisk him, but also his efforts to handcuff him and place him in the cruiser, and the defendant ceased struggling

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and resisting only when the door to the cruiser closed. Compare Commonwealth v. Smith, 55 Mass. App. Ct. 569 , 574-575 (2002) (resisting arrest statute cannot apply when police attempt to seize person only for purpose of threshold inquiry, as distinct from making arrest). Telford's handcuffing of the defendant and placing him in the cruiser satisfies the "arrest" component of the statute and provides sufficient basis for concluding that he intended to arrest the defendant and that the defendant understood this to be the case. [Note 3] The defendant's resistance to being handcuffed and placed in the cruiser is sufficient resistance to amount to "physical force or violence" or a means creating "a substantial risk of causing bodily injury" to the arresting officer, as required under the statute. See Commonwealth v. Grandison, 433 Mass. at 144-145 & n.18 (stiffening arm and pulling arm free); Commonwealth v. Katykhin, 59 Mass. App. Ct. 261 , 262 (2003) (stiffening body and initiating "tug of war" to avoid being placed in cruiser not purely passive conduct); Commonwealth v. Maylott, 65 Mass. App. Ct. 466 , 467-469 (2006) (stiffening arms to resist handcuffing represents active physical refusal to submit to authority of arresting officers under either prong of statute).

In sum, the resistance Telford encountered was not solely to a patfrisk of the defendant. Compare Commonwealth v. Pagan, 63 Mass. App. Ct. at 784. Even assuming that Telford had not arrested the defendant when he began the initial patfrisk, by the time Telford placed handcuffs on the defendant and attempted to place him in the cruiser, the defendant was under arrest, understood that to be so, and was resisting that action. See Commonwealth v. Grandison, 433 Mass. at 144-145 (officer's characterization of defendant's behavior as "resisting" or "struggling" not mere opinion).

2. Sentencing. Prior to sentencing, the judge heard from the prosecutor and defense counsel and examined the defendant's probation record. Defense counsel emphasized that the defendant had no prior convictions; the prosecutor pointed out that the defendant's record included matters that had been

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continued without a finding under probationary conditions. Both the prosecutor and defense counsel also addressed defaults on the defendant's record. At no time did defense counsel object to the judge's examination of the defendant's probation record or insist that the probation officer redact entries relating to "not guilty" findings before the judge reviewed the record.

The defendant now maintains that the sentences imposed were based on improper factors or impermissible information in violation of constitutional principles. [Note 4] See Commonwealth v. LeBlanc, 370 Mass. 217 , 221 (1976) (reliance on improper or impermissible factors in sentencing creates substantial risk of miscarriage of justice); Commonwealth v. Souza, 390 Mass. 813 , 817-818 (1984). In particular, the defendant complains that the judge examined his entire probation record, including matters that had been dismissed, in violation of Mass.R.Crim.P. 28(d)(2), 378 Mass. 898 (1979). [Note 5] We discern no error, and thus there is no substantial risk of a miscarriage of justice.

To the extent that the defendant's record included matters that had been dismissed, nothing in the Federal or State Constitutions, the rules of criminal procedure, or the General Laws prohibits the judge from viewing such matters. See Commonwealth v. LeBlanc, 370 Mass. at 220-221; Commonwealth v. Goodwin, 414 Mass. 88 , 91-93 (1993). The prohibition of the rule speaks only to matters of which the defendant was found not guilty. [Note 6] Id. at 91. The parallel statutory prohibition is to the same effect. See G. L. c. 276, § 85, as amended by St. 1956,

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c. 731, § 15. [Note 7] See also Commonwealth v. Goodwin, 414 Mass. at 91.

The defendant has made no showing that his record contained entries of "not guilty" findings, or that in passing sentence the judge used the record improperly or "punish[ed] the defendant for any conduct other than that for which the defendant [stood] convicted in the particular case." Commonwealth v. LeBlanc, 370 Mass. at 221. See Commonwealth v. Goodwin, 414 Mass. at 91. The defendant's probation record included in the record appendix contains no such entries. [Note 8] See Commonwealth v. Guerro, 14 Mass. App. Ct. 743 , 746 (1982) (defendant's burden to demonstrate sentence based on improper information). Even were we to assume that the record viewed by the judge at sentencing contained entries of prosecutions that concluded in findings of "not guilty," the sentencing transcript makes clear that the judge punished the defendant only for the conduct of which he stood convicted. Contrast Commonwealth v. Henriquez, 440 Mass. 1015 , 1016 (2003).

Judgments affirmed.