Com. v. Kortman, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, OTT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.*: FILED MAY 14, 2015
Robert W. Kortman appeals from the aggregate judgment of sentence
of one to four years imprisonment imposed by the trial court after a jury
found him guilty of recklessly endangering another person (“REAP”),
resisting arrest, disorderly conduct, and harassment. After careful review,
we reverse.
Pursuant to a court order, Appellant was to meet with his former
paramour in the West Reading Borough building parking lot to exchange
physical custody of their child. Accordingly, on April 19, 2012, at
approximately 6:30 p.m., Appellant was waiting for his ex-girlfriend to
arrive. At the time, Appellant had already been waiting for approximately
one-half hour and, ultimately, his former girlfriend never arrived.
* This case was reassigned to this author on March 9, 2015.
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West Reading Police Sergeant Keith Phillips, who was not on duty, and
was not in uniform, observed Appellant seated in his own vehicle in the
parking lot. Sergeant Phillips approached Appellant, identified himself as a
police officer, and questioned Appellant as to both his identity and presence.
Appellant refused to speak with Sergeant Phillips and called 911 to report an
individual claiming to be a police officer who would not produce a badge.
Although Sergeant Phillips was not in uniform and did not display a badge,
he was wearing a shirt with a police badge embroidered on it, which also
said, “West Reading Police Department” on the left sleeve. The 911 operator
instructed Appellant to get the individual’s license plate number.
Accordingly, Appellant proceeded to attempt to photograph the license plate
of Sergeant Phillip’s civilian vehicle, a pickup truck.
Dissatisfied that Appellant would not answer his queries, Sergeant
Phillips called for uniformed police to respond. Officer Marc Oxenford, in full
uniform, then arrived on the scene in a marked police cruiser. Officer
Oxenford attempted to question Appellant, who was still on the telephone
with the 911 operator. Sergeant Phillips also pulled his pickup truck toward
the rear of Appellant’s car, but not directly behind it. In addition, a third
police officer arrived. Officer Edward DeLozier, Jr., in full uniform, drove his
police vehicle directly in front of Appellant’s car and parked it three to five
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feet from the front of Appellant’s vehicle. According to Officer DeLozier, it
appeared that Appellant was arguing with the two other officers.
Police continued to attempt to question Appellant and demanded that
he exit his vehicle. When Appellant continued to disregard police
questioning, Officer DeLozier placed his right foot inside the front driver’s
side door area of Appellant’s car in order to reach inside and seize
Appellant’s keys. As he did so, Appellant’s car, which had a manual
transmission, stalled out and lurched forward. When this occurred, Officer
Oxenford was to the rear of the car on the driver’s side. Officer DeLozier
and Officer Oxenford stepped further away from the vehicle, and thereafter
Officer DeLozier told Appellant that he was placing him under arrest. Officer
DeLozier then reached into the vehicle and grabbed Appellant. Appellant
leaned back and shed Officer DeLozier’s hold. Officer DeLozier then pulled
Appellant partially from the car. As he did so, Appellant placed his foot on
the ground and braced himself against being pulled further. Officer DeLozier
continued to pull Appellant to the ground and, with the aid of Officer
Oxenford, handcuffed him. While police attempted to handcuff Appellant, he
tried to move his hands to the front of his body.
After securing Appellant, the police placed him in the back of Officer
DeLozier’s police vehicle, at which point Appellant asked why he was being
arrested and asserted that the police were “going to take him to prison, strip
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him, abuse him, and rape him.” N.T., 11/19/13, at 130. The
Commonwealth charged Appellant with REAP, resisting arrest, and two
counts each of disorderly conduct and harassment. Appellant proceeded to
a jury trial. The jury acquitted Appellant of one disorderly conduct and
harassment charge and found Appellant guilty of the remaining offenses.
The court sentenced Appellant to the aforementioned sentence. This timely
appeal ensued. The trial 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 authored its Rule 1925(a) opinion.
The matter is now ready for our review.
Appellant presents the following seven sufficiency of the evidence
claims for this Court’s consideration.
1. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Recklessly Endangering
Another Person, 18 Pa.C.S.A. § 2705, as it was not established
that Appellant placed or may have placed either Officer Edward
DeLozier or Officer Marc Oxenford in danger of death or serious
bodily injury where neither officer was in a position to be struck
by Appellant’s vehicle in any manner?
2. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Recklessly Endangering
Another Person, 18 Pa.C.S.A. § 2705, as it was not established
that Appellant consciously ignored a great and unjustifiable risk
that his actions would cause either Officer Edward DeLozier or
Officer Marc Oxenford to be seriously injured where the risk of
injury was so serious that Appellant’s actions were a gross
deviation from the standard of conduct that a reasonable person
in his situation would have followed where Appellant simply
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removed his foot from the clutch, causing his car to stall and
lurch forward a minimal distance?
3. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Resisting Arrest, 18
Pa.C.S.A. § 5104, as it was not established that Appellant
resisted a lawful arrest by means justifying or requiring
substantial force to overcome his resistance where he merely
argued and/or scuffled with the officers?
4. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Disorderly Conduct, 18
Pa.C.S.A. § 5503(a)(1), as it was not established that Appellant
engaged in fighting, threatening, violent, or tumultuous behavior
directed at producing or inciting imminent lawless actions or
immediate violent response where Appellant merely argued with
the officers and voiced his concern over being arrested and
imprisoned?
5. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Disorderly Conduct, 18
Pa.C.S.A. § 5503(a)(1), as it was not established that Appellant
argued with the officers and voiced his concerns over being
arrested and imprisoned with the intent to cause either
substantial harm to the public by way of annoyance or alarm or
serious public inconvenience?
6. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Harassment, 18
Pa.C.S.A. § 2709(a)(4), as it was not established that Appellant
communicated to Officer DeLozier or Officer Oxenford any words
or language that the average person would find lewd, lascivious,
threatening, or obscene where Appellant voiced his concerns
over being arrested and imprisoned?
7. Whether the evidence presented was sufficient as a matter of
law to support Appellant’s conviction for Harassment, 18
Pa.C.S.A. § 2709(a)(4), as it was not established that Appellant
communicated to Officer DeLozier or Officer Oxenford any lewd,
lascivious, threatening, or obscene words or language with the
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intent to annoy, harass, or alarm Officer DeLozier or Officer
Oxenford but rather that Appellant merely voiced his concerns
over being arrested and imprisoned?
Appellant’s brief at 4-5.
In conducting a sufficiency of the evidence review, we view all of the
evidence admitted, even improperly admitted evidence. 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. Id. This Court is not
permitted “to re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id.Appellant’s first two sufficiency claims pertain to his REAP charge.
Appellant argues that “given the positions of all of the police officers, it
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would have been impossible for the vehicle to make even the most minor
contacts with any of [their] bod[ies] unless the law of physics were
suspended and the vehicle had somehow lurched sideways.” Appellant’s
brief at 12 (emphasis removed). The question here is whether Appellant’s
action of starting his car and putting it in gear before it stalled out, thereby
causing the car to lurch forward, recklessly put either Officer DeLozier or
Officer Oxenford in danger of death or serious bodily injury. We find that
the evidence presented by the officers does not prove that Appellant
recklessly placed or may have placed the officers in danger of death or
serious bodily injury. See 18 Pa.C.S. § 2705 (person must recklessly
engage “in conduct which places or may place another person in danger of
death or serious bodily injury.”).
There is no dispute that the officers were not in danger of death.
Thus, we focus on whether Appellant’s conduct was criminally reckless and if
the officers were in danger of serious bodily injury. The Crimes Code defines
criminal recklessness as follows.
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor's situation.
18 Pa.C.S. § 302(b)(3).
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In addition, serious bodily injury is defined as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301. The danger to the officers,
according to their own testimony, is that Appellant could have driven over
them or run over their feet. Viewing the evidence in a light most favorable
to the Commonwealth, the consistent and repeated testimony by the officers
was that 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 lurched and stalled
because Appellant’s car was on and in gear and his foot was no longer on
the clutch. There is no evidence that the engine was revved and Appellant
pressed the gas pedal. Appellant’s conduct, therefore, was to cause his car
to lurch forward one time, not drive the vehicle. The evidence to infer that
Appellant intended to drive away is that he turned his vehicle on and it was
in gear. However, the fact that Appellant’s car stalled out because he did
not press the gas pedal while releasing the clutch conclusively demonstrates
that he was not attempting to drive; thus, any such inference that he would
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drive away is not reasonable.1 Indeed, the evidence at trial was undisputed
that a police vehicle pulled directly in front of Appellant’s car in an attempt
to block him in his space. Specifically, Appellant had backed into a parking
spot. A cement parking block was located behind Appellant’s car and he
never attempted to drive backward. Officer DeLozier pulled his police sport
utility vehicle three to five feet directly in front of Appellant’s car, with the
two vehicles forming a t-shape. Appellant could not have driven forward
more than five feet, and in fact did not drive forward. Based on the
testimony, Appellant would had to have sharply turned his vehicle’s wheels
to the right to even attempt to exit. There is no testimony to that effect.
Officer Oxenford testified that he did not see the cars wheels move.
However, Officer DeLozier, who had his right foot in the front driver’s side
door area so as to remove Appellant’s keys, did state that the car moved
approximately three feet forward when it stalled. Thus, considering the
evidence in a light most favorable to the Commonwealth, we infer that the
wheels moved. Nonetheless, the vehicle lurching forward, at most three feet
but obviously less than five feet, would not have put any of the officers in
danger of serious bodily injury. The back wheels of Appellant’s car were
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1
We are aware that beginners learning to drive a manual transmission do
stall out when attempting to drive. There is absolutely no evidence to infer
that Appellant was learning how to drive a manual transmission.
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more than three feet from Officer DeLozier’s feet, which according to his own
testimony were by the front of the front door of Appellant’s car. Thus, there
is no probability that the car’s momentary lurch placed the officer in danger
of serious bodily injury. Nor is it a reasonable inference based on the
evidence that Appellant acted in a criminally reckless fashion by removing
his foot from the clutch of his vehicle when police were reaching inside his
car to turn it off. We therefore reverse Appellant’s conviction for REAP. 2
____________________________________________
2
The learned dissent erroneously infers that we have suggested that expert
testimony was needed to determine that “having one’s feet run over by a
car” could lead to serious injury. Dissent, at 8. Nowhere have we suggested
or implied that expert testimony is necessary. Frankly, having one’s foot run
over can result in serious bodily injury. What we have held is that based on
each of the officers’ testimony, it was not possible for their feet to get run
over when the car stalled. Equally important, there is insufficient evidence
that Appellant had the requisite criminal intent. The dissent appears to
believe that the mere starting of the car and placing it in gear caused the
officers to be in danger of serious bodily injury or showed an intent to
seriously harm the officers. See id. at n.7. That position is untenable.
Indeed, unless police had probable cause or reasonable suspicion to have
detained him, Appellant should have been free to go.
Pointedly, the actions of the police in this matter prior to the car
stalling out likely constituted an unlawful investigative detention. No person
would feel free to leave with three armed officers on the scene, a police SUV
parked directly in front of the car so as to prevent easy egress, and other
police cars preventing an exit to the left without sideswiping a police vehicle.
Further, one officer was trying to take Appellant’s keys before Appellant’s car
lurched, which was the reason for the officer having one foot inside the car.
There was no evidence of criminal activity on Appellant’s part and he should
have been free to leave. While before the arrival of uniformed police,
Appellant did call 911 to complain of another officer who would not display
(Footnote Continued Next Page)
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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
overcome the resistance.” 18 Pa.C.S. § 5104.3 Running away, arguing with,
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(Footnote Continued)
his badge, this was not a mere encounter nor were the police assisting
Appellant.
3
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
(Footnote Continued Next Page)
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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); Comment to 18 Pa.C.S. § 5104 (“This section changes existing law
somewhat by not extending to minor scuffling which occasionally takes place
during an arrest.”); Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super.
1981).4
In Rainey, an inebriated Rainey believed he had entered his friend’s
apartment and used the bathroom therein. However, his friend had moved
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
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(Footnote Continued)
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.
4
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 (emphases added).
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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 Rainey and Rainey “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 contrast, in Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super.
1989), 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.
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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 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 Commonwealth v. Butler, 512 A.2d 667 (Pa.Super. 1986), the
defendant snatched four gold chains from a woman’s neck in broad daylight
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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 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.
In both Lyons and Butler, the defendant exercised more force and
resistance than at issue here. Assuming that the totality of the
circumstances warranted Appellant’s arrest after the car lurched forward,
Appellant did not create a substantial risk of bodily injury or resist by means
justifying or requiring substantial force to subdue him. Instantly, Appellant
“pulled away” from police by planting his foot “down on the ground to brace
himself from being taken out of the car[,]” and moving his body toward the
passenger seat. N.T., 11/19/13, at 108, 109. He attempted to stand up
after being taken to the ground, but was pushed down. When he was
removed from the car, “he was trying to put his hands in front of him. He
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wasn’t actually complying by putting his hands behind his back.” N.T.,
11/20/13, at 140. 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 substantial force
to overcome them.
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 involves some substantial
danger to the officer. Miller, supra at 146. In this case, there is no
evidence that Appellant punched, struck, kicked, spit upon, shoved, used his
shoulders to strike, fled, or exerted 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.
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
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shoulders and cursing was sufficient evidence of resisting arrest);
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);
Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa.Super. 2006)
(defendant pushed officer, violently struggled with the officer, and mule-
kicked him twice); Commonwealth v. Jackson, 907 A.2d 540, 546
(Pa.Super. 2006) (defendant kicked officer during lawful investigative
detention); 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 his body in a rapid fashion,
“push[ed] through” an officer, strained and struggled against the police and
bruised an officer’s leg).
Appellant’s pulling away, putting his foot down, attempting to stand,
and moving his hands to the front of his body are the precise types of
actions that were not designed to be encompassed by the resisting arrest
statute. Indeed, Appellant’s trivial acts of resistance are the type of actions
not covered by the statute so as to avoid inviting abusive prosecution. The
Commonwealth failed to prove that Appellant statutorily-resisted arrest.
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Appellant’s next two issues are that the Commonwealth introduced
insufficient evidence to prove disorderly conduct under 18 Pa.C.S. §
5503(a)(1), charged as a third-degree misdemeanor pursuant to § 5503(b).
The pertinent disorderly conduct charge set forth that, “A person is guilty of
disorderly conduct if, with the intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in
fighting or threatening or violent or tumultuous behavior.” 18 Pa.C.S. §
5503(a)(1). In addition, because the Commonwealth charged Appellant with
a misdemeanor offense, it also had to show his intent was “to cause
substantial harm or serious inconvenience, or [that] he persist[ed] in
disorderly conduct after reasonable warning or request to desist.” 18
Pa.C.S.A. § 5503(b). Appellant argues that the evidence did not
demonstrate that he engaged in fighting, threatening, violent, or tumultuous
behavior or had the intent to cause substantial harm to the public by causing
annoyance, alarm, or serious public inconvenience.
Appellant’s actions of pulling away, putting his foot down, attempting
to stand, and moving his hands in front of his body are not violent actions
that were intended to harm the officers. This Court has also recognized,
“Tumultuous” is not defined in Section 5503 or elsewhere in the
Crimes Code. Commonly, ‘tumultuous’ is defined as ‘marked by
tumult’; ‘tending or disposed to cause or incite a tumult’; or
‘marked by violent or overwhelming turbulence or upheaval.’
Merriam Webster's Collegiate Dictionary 1272 (10th ed. 1996).
“Tumult” is relevantly defined as “a disorderly agitation ... of a
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crowd usu. with uproar and confusion of voices,” or ‘a violent
outburst.”
Commonwealth v. Love, 896 A.2d 1276, 1285 (Pa.Super. 2006). Again,
Appellant’s actions were not marked by violent or overwhelming turbulence
nor did he agitate a crowd or engage in a violent outburst. Further, there
was insufficient evidence to establish public inconvenience, annoyance, or
alarm.
The disorderly conduct statute defines “public” as “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.” 18 Pa.C.S. §
5503(c). Here, the undisputed testimony of the three police officers was
that no other person was present in the parking lot at the time and that the
incident occurred away from the street at the “far end of the parking lot.”
N.T., 11/19/13, at 72. In sum, the evidence presented at trial established
that the disturbance occurred away from the street and sidewalks as well as
the presence of the public.
Since no members of the public were present, it is not a reasonable
inference that he intended to cause public annoyance, alarm, or
inconvenience, let alone substantial harm or inconvenience. To the extent
that the Commonwealth argues that he recklessly disregarded a risk of
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creating such a disturbance, it fails to provide legal authority to support the
view that a person creates a substantial and unjustifiable risk of alarm,
annoyance, or inconvenience where the general public is not present. Thus,
the Commonwealth’s evidence was insufficient as a matter of law to meet
the disorderly conduct charge for which Appellant was convicted.
The final two claims Appellant levels attack the sufficiency of the
evidence as to his harassment conviction. “A person commits the crime of
harassment when, with intent to harass, annoy or alarm another person, the
person communicates to or about such other person any lewd, lascivious,
threatening or obscene words, language, drawings, or caricatures.” 18
Pa.C.S. § 2709(a)(4). Appellant maintains that the language he used was
not lewd, lascivious, threatening, or obscene nor did the Commonwealth
establish that he intended to annoy, harass, or alarm the police.
The specific language at issue is Appellant’s statement that Officer
DeLozier “was going to take him to prison, strip him, abuse him and rape
him.” N.T., 11/19/13, at 118. Black’s Law Dictionary defines “lewd” as
“[o]bscene or indecent; tending to moral impurity or wantonness.” Black’s
Law Dictionary 919 (7th Ed. 1999). Similarly, it defines lascivious as “([o]f
conduct) tending to excite lust; lewd; indecent; obscene.” Id. at 886. The
Commonwealth does not and did not below contend that the statement was
threatening, nor can it be construed as a threat. The definition of “obscene”
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provided by Black’s Law Dictionary is as follows, “[e]xtremely offensive
under contemporary community standards of morality and decency; grossly
repugnant to the generally accepted notions of what is appropriate.” See
also 18 Pa.C.S. § 5903 (defining obscenity as “‘Obscene.’ Any material or
performance, if: (1) the average person applying contemporary community
standards would find that the subject matter taken as a whole appeals to the
prurient interest; (2) the subject matter depicts or describes in a patently
offensive way, sexual conduct of a type described in this section; and (3) the
subject matter, taken as a whole, lacks serious literary, artistic, political,
educational or scientific value.”).
The crux of each of the words in the harassment statute are focused
on words intended to evoke sexual desire. See also Commonwealth v.
Cox, 72 A.3d 719, 722 n.4 (Pa.Super. 2013); Commonwealth v. Fenton,
750 A.2d 863 (Pa.Super. 2003); Brockway v. Shepherd, 942 F.Supp.
1012, 1015 (M.D.Pa. 1996) (discussing the term “obscene” and
Pennsylvania’s disorderly conduct statute). Here, it is evident that Appellant
was not intending to evoke sexual desire or lust. Appellant’s odd assertion
to police was not a lewd, lascivious, or obscene statement. There is no
evidence that Appellant committed harassment. For the aforementioned
reasons, we reverse each of Appellant’s convictions.
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Judgment of sentence reversed. Appellant discharged. Jurisdiction
relinquished.
Judge Musmanno joins this memorandum.
Judge Ott files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2015
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