Com. v. Rodriguez-Morales, L.

J-S33040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS RODRIGUEZ-MORALES :
:
Appellant : No. 667 EDA 2021
Appeal from the Judgment of Sentence Entered March 17, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002124-2020
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 8, 2022
Luis Rodriguez-Morales appeals from the judgment of sentence entered
on March 17, 2021, following his convictions for disorderly conduct and
harassment.1 Rodriguez-Morales challenges the sufficiency of the evidence to
sustain his convictions. We affirm.
The trial court accurately summarized the facts as follows:
On January 8, 2020, Stacy Vibbert, a City of Allentown
paramedic, was working night shift when she and her
partner were dispatched to 5340 North Fountain Street,
Allentown, Lehigh County, Pennsylvania for a report of an
unconscious person who had possibly overdosed. Upon
responding to the scene, Ms. Vibbert and her partner were
escorted to a bathroom where she observed a male whom
she identified as [Rodriguez-Morales] lying on the floor with
a syringe nearby. After checking [Rodriguez-Morales] for
signs of responsiveness, he was administered Narcan and
____________________________________________
1 18 Pa.C.S.A. § 5503(a)(4) and 18 Pa.C.S.A. § 2709(a)(1), respectively.
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was transported by ambulance to St. Luke’s Sacred Heart
Hospital at Fourth and Chew Street in Allentown.
Ms. Vibbert credibly testified that after arriving at the
hospital, but while everyone was still in the ambulance,
[Rodriguez-Morales] began talking to Ms. Vibbert and her
partner. He asked questions about where he was.
[Rodriguez-Morales] initially tried to get off the stretcher by
himself, but Ms. Vibbert and her partner asked him to lie
down for his own safety so he could be moved into the
hospital. She testified [Rodriguez-Morales] looked like he
was going to spit or throw up, so she went to provide him
with a bag. [Rodriguez-Morales] took the bag, told her “I'm
not going to throw up,” and then spit on the stretcher. He
was told that if he had to spit, he needed to use the bag,
but he again spit on the stretcher.
After that, [Rodriguez-Morales] settled down and became
more compliant. However, while being wheeled into the
hospital on the stretcher, [Rodriguez-Morales] spit off the
side of the stretcher and onto the floor. He was again
admonished to use the bag if he had to spit, and he then
proceeded to spit into the bag. While Ms. Vibbert and her
partner prepared to move [Rodriguez-Morales] from the
stretcher into his hospital bed, [Rodriguez-Morales] propped
himself up on his elbows, arched his head backwards, and
spit in Ms. Vibbert’s face. Ms. Vibbert testified that the
substance that hit her face was a combination of blood and
saliva. Because of this incident, Ms. Vibbert testified that
she had to undergo six months of blood tests due to possible
exposure.
Trial Court Opinion, filed April 30, 2021, at 2-3.
A non-jury trial was held on January 29, 2021 and the court found
Rodriguez-Morales guilty of the aforementioned offenses. Rodriguez-Morales
was sentenced to a cumulative period of probation for 12 months, with the
first 90 days to be served on house arrest. This timely appeal followed.
Rodriguez-Morales raises the following two issues for our review:
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1. Was the evidence insufficient to prove beyond a
reasonable doubt that [Rodriguez-Morales] committed
misdemeanor disorderly conduct where the
Commonwealth presented no evidence [Rodriguez-
Morales’] conduct occurred in “public,” that he possessed
the requisite mens rea, or that his alleged disorderliness
satisfied a misdemeanor-level conviction?
2. Was the evidence insufficient to prove beyond a
reasonable doubt that [Rodriguez-Morales] committed
summary harassment where the act of spitting is not the
type of conduct criminalized by the statute?
Rodriguez-Morales’ Br. at 4.
Our standard of review when reviewing a challenge to the sufficiency of
the evidence is de novo, while “our scope of review is limited to considering
the evidence of record, and all reasonable inferences arising therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-421 (Pa. 2014).
“Evidence will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission thereof by
the accused, beyond a reasonable doubt.” Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000). The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. Commonwealth v. Dix, 207 A.3d
383, 390 (Pa.Super. 2019). Further, the trier of fact is free to believe, all,
part, or none of the evidence presented when making credibility
determinations. Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super.
2016). “[T]his Court may not substitute its judgment for that of the factfinder,
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and where the record contains support for the convictions, they may not be
disturbed.” Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).
Rodriguez-Morales first contends that the evidence was insufficient to
support his conviction for disorderly conduct because the Commonwealth
failed to prove that his conduct occurred in “public,” within the meaning of the
statute. Rodriguez-Morales’ Br. at 10.
Disorderly conduct is defined as follows:
(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.A. § 5503(a)(4).
Rodriguez-Morales argues that “the Commonwealth presented no
evidence that the location of [Rodriguez-Morales’] spitting was in an area
‘open to the public,’ or ‘to which the public or a substantial group ha[d]
access’” as required by 18 Pa.C.S.A. § 5503(c). Rodriguez-Morales’ Br. at 13
(emphasis omitted). Rodriguez-Morales contends that the emergency room of
a hospital is an area in a hospital which has some sections accessible to the
public while other sections are not, and that the public does not have
unfettered access to every area inside a hospital. Id. at 13-14. According to
Rodriguez-Morales, “the Commonwealth presented no evidence as to the
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location of the hospital bed which was the site of [his] spitting in Ms. Vibbert’s
face.” Id. at 15.
Rodriguez-Morales’ argument is unavailing. The disorderly conduct
statute requires that the defendant have acted “with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof. . . .”
18 Pa.C.S. § 5303(a). For purposes of this statute, “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.” 18 Pa.C.S.A. §
5503(c).
We have found the statutory definition of “public” met in cases involving
areas of a premises not primarily accessible to the general public, so long as
the area at issue was accessible to a substantial portion of the public. See
Commonwealth v. O’Brien, 939 A.2d 912, 914 (Pa.Super. 2007) (holding
private road met definition, as “‘a place to which the public or a substantial
group,’ namely the surrounding community’s residents and their invitees” had
access); Commonwealth v. Whritenour, 751 A.2d 687, 688 (Pa.Super.
2000) (finding that a road in a private gated community met definition
because “residents of the homes in the community, their guests and
employees, as well as visitors attending religious events, users of the public
library located in the community, and delivery people of all kinds” used it).
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Here, Vibbert testified that as she and a coworker were wheeling
Rodriguez-Morales into the emergency room, Rodriguez-Morales spat on the
floor, even though Vibbert had previously told him that if he needed to spit to
use a bag provided for that purpose. Vibbert stated that in addition to her
partner, hospital staff members were present in the emergency room giving
instructions on where to take Rodriguez-Morales and how to care for him. She
said that Rodriguez-Morales then proceeded to spit again, in the hospital
hallway, and later in Vibbert’s face in the hospital room. N.T., 1/29/21, at 18-
19, 21.
Accordingly, there was sufficient evidence for the court to find that the
evidence satisfied the statutory definition of “public.” A hospital emergency
room and adjoining areas are held open generally to the public. Rodriguez-
Morales’ reliance on Commonwealth v. Lawson, 759 A.2d 1, 5 (Pa.Super.
2000), is misplaced. That case involved a party in a private apartment open
only to the renters and their invited guests. Rodriguez-Morales’ first issue
lacks merit.
Rodriguez-Morales next argues that the Commonwealth failed to
present sufficient evidence that he possessed the requisite mens rea for
disorderly conduct. Rodriguez-Morales argues that his actions were the result
of his physical condition at the time since he had just overdosed and had been
administered Narcan. Rodriguez-Morales’ Br. at 16-17.
“The mens rea requirement of [section 5503] demands proof that
appellant by his actions intentionally or recklessly created a risk or caused a
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public inconvenience, annoyance or alarm.” Commonwealth v. Troy, 832
A.2d 1089, 1094 (Pa.Super. 2003) (quoting Commonwealth v. Gilbert, 674
A.2d 284, 286 (Pa.Super. 1996)). The Commonwealth may meet the intent
requirement of disorderly conduct “by a showing of a reckless disregard of the
risk of public inconvenience, annoyance, or alarm, even if the appellant’s
intent was to send a message to a certain individual, rather than to cause
public inconvenience, annoyance, or alarm.” Id. (citing Commonwealth v.
Kidd, 442 A.2d 826, 827 (Pa.Super. 1982) (internal quotation mark omitted).
Here, the evidence showed that although Rodriguez-Morales overdosed
and was administered Narcan, he was conscious, alert and engaged in
conversation with Vibbert and her partner while in the hospital’s parking lot
prior to his multiple spitting instances. N.T. at 15-17, 35-37. As the trial court
pointed out, this was not a situation where Rodriguez-Morales had an
immediate adverse reaction to the Narcan that was administered. Rather,
Rodriguez-Morales spat on the stretcher after he awoke in the ambulance and
later did so again on the floor of the emergency room, before spitting directly
into Vibbert’s face. Id. at 17-18, 36, 39. When he spat into Vibbert’s face, he
propped himself up on his elbows, arched his head backwards, and spat
directly at her. Id. at 18-19, 40. This evidence was sufficient for the trial court
to conclude that Rodriguez-Morales intentionally caused, or recklessly created,
“a hazardous or physically offensive condition” that served “no legitimate
purpose.” See 18 Pa.C.S.A. § 5503(a)(4).
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His final challenge to his disorderly conduct conviction is to the grading.
He maintains that the trial court improperly graded his offense as a
misdemeanor of the third degree because, according to Rodriguez-Morales,
“there was no warning or request to desist after [he] persisted in disorderly
conduct.” Rodriguez-Morales’ Br. at 18.
Rodriguez-Morales misstates the proof required in order to grade
disorderly conduct as a misdemeanor. Disorderly conduct is a misdemeanor
of the third degree if the defendant’s intent was “to cause substantial harm or
serious inconvenience,” or if the defendant “persists in disorderly conduct after
reasonable warning or request to desist.” 18 Pa.C.S.A. § 5503(b). Otherwise
the conviction is a summary offense. Id. The evidence here was sufficient to
satisfy that element because Vibbert testified that she twice told him to spit
in the bag provided, after Rodriguez-Morales spit in the ambulance and again
on the floor in the hospital. Despite those requests, he nonetheless spit blood
and saliva in her face.
Rodriguez-Morales’ final argument is that there was insufficient
evidence to convict him of harassment. He contends that the act of spitting is
not the type of physical contact meant by the harassment statute. Rodriguez-
Morales’ Br. at 18.
The crime of harassment occurs when a person, with intent to harass,
annoy or alarm another, “strikes, shoves, kicks or otherwise subjects the other
person to physical contact,” or attempts or threatens to do so. 18 Pa.C.S.A. §
2709(a)(1). Rodriguez-Morales cites a canon of statutory construction known
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as ejusdem generis, which states that “where general words follow the
enumeration of particular classes of persons or things, the general words will
be construed as applicable only to persons or things of the same general
nature or class as those enumerated.” Commonwealth v. Scott, 176 A.3d
283, 288 (Pa.Super. 2017). On this basis he argues that spitting is not
“physical contact” for purposes of the harassment statute, because it is not of
the same type, nature or class as striking, shoving, or kicking. Rodriguez-
Morales’ Br. at 19.
The principle of ejusdem generis is found in the Statutory Construction
Act. See 1 Pa.C.S. § 1903(b) (“General words shall be construed to take their
meanings and be restricted by preceding particular words”). The Statutory
Construction Act provides that the “object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the
General Assembly.” 1 Pa.C.S. § 1921(a). However, the Act also directs us, in
performing those tasks, to presume that “the General Assembly does not
intend a result that is absurd, impossible of execution or unreasonable.” 1
Pa.C.S. § 1922(1). We also may not disregard the plain meaning of statutory
language in pursuit of the statute’s supposed spirit. 1 Pa.C.S. § 1921(b).
Rodriguez-Morales does not explain the limitation or category that he
believes “strikes, shoves, kicks” represents or the way in which spitting is not
in the same class as striking, shoving, and kicking. His argument is
undeveloped, and he has therefore waived it. See Commonwealth v.
Thomas, 215 A.3d 36, 51 (Pa. 2019) (finding argument waived where
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appellant failed to explain his bare assertion of prejudice). Even if we were to
speculate that Rodriguez-Morales means to say that spitting is different from
striking, shoving, and kicking because it is not sufficiently violent, or because
it is an action through an instrumentality rather than direct contact, we would
reject those arguments. Requiring a degree of violence would run counter to
the plain meaning of “physical contact.” And precluding an action through an
instrumentality would be unreasonable and absurd. If such were the case, the
General Assembly would be permitting a person to engage in conduct that
would amount to harassment but avoid conviction so long as any “physical
contact” was achieved through an instrumentality, such as spit.
Rodriguez-Morales caused his saliva and blood to come into physical
contact with Vibbert’s face. The trial court credited Vibbert’s testimony that
Rodriguez-Morales was conscious and alert when he disregarded the
instructions to spit in the bag and instead intentionally spat in Vibbert’s face.
Trial Ct. Op. at 10. Rodriguez-Morales’ conscious decision to spit bodily fluids
onto another person satisfies the “physical contact” element of the
harassment statute. His final claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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