Com. v. Murchison, A.

J-A29033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE MURCHISON :
:
Appellant : No. 31 WDA 2022
Appeal from the Judgment of Sentence Entered December 7, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0010981-2019.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 19, 2023
Andre Murchison appeals from the judgment of sentence imposed after
the trial court found him guilty of disorderly conduct and leaving an
unattended child in a motor vehicle.1 Upon review, we affirm in part and
reverse in part.
The trial court set forth the following facts:
On June 26, 2019, a fire broke out in [Murchison's] neighborhood.
The fire was such that four different fire departments responded
to it. [Murchison's] residence was on fire, and he was aware of
that fact. He also knew that the fire at his residence was capable
of spreading because the fire began at a property adjacent to
[Murchison's] residence before moving to his own.
After arriving at the fire scene, law enforcement helped
[Murchison] remove his newborn baby from his burning residence
and to secure the baby in [Murchison's] vehicle so that he could
drive the baby and his two other children safely away from the
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1 18 Pa.C.S.A. § 5503(a)(1) and 75 Pa.C.S.A. § 3701.1(a).
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fire. [Murchison], however, only drove his car across the street,
parking less than one hundred feet from the fire. He then
abandoned the children, including the newborn baby, in the
vehicle; returned to his burning residence; and attempted to
prevent the firemen on the scene from entering his residence to
fight the fire, which - as set forth above - he knew was capable of
spreading and had, in fact, spread to his own residence.
[Murchison] was out of control. He argued with the firemen, told
them they were not allowed in his house, and physically blocked
them from entering his house. He also became argumentative
with law enforcement. [Murchison] was so out of control that he
would not calm down and, instead, was forced to be detained so
that the firemen could do their jobs. Accordingly, he was not only
handcuffed, but he needed to be placed into the back of one of
law enforcement's patrol cars so that the fire scene could be
secured and the firemen could fight the blaze.
Trial Court Opinion, 3/3/22, at 5-6 (citations omitted). Eventually, Murchison
was released, and he returned to his children. The police cited him for multiple
offenses.
Following a bench trial, the court found Murchison guilty of disorderly
conduct and leaving an unattended child in a motor vehicle. The court
sentenced him to pay a $300 fine for disorderly conduct with no further
punishment/penalty for the motor vehicle offense.
Murchison filed this timely appeal. Murchison and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Murchison raises the following two issues:
1. Should [] Murchison's conviction for having violated 18 Pa.C.S.
§ 5503(a)(1) [disorderly conduct] be vacated with prejudice given
the Commonwealth's failure to present evidence establishing,
beyond a reasonable doubt, that he (a) fought with anyone, (b)
threatened anyone, (c) engaged in violent conduct, or (d)
engaged in tumultuous conduct?
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2. Should [] Murchison's conviction for having violated 75 Pa.C.S.
§ 3701.1(a) [leaving an unattended child in a motor vehicle] be
vacated with prejudice given the Commonwealth's failure to
present evidence establishing, beyond a reasonable doubt, that
he, in walking away from his automobile in order to argue with a
policeman and firefighters, (a) left his newborn baby unattended
in his automobile (rather than attended to by his other two
children and his neighbor), (b) was unable to see his automobile
after walking away from it, and (c) endangered his baby's health,
safety, or welfare in the process?
Murchison’s Brief at 2. Murchison challenges the sufficiency of the evidence
to convict him of disorderly conduct and leaving an unattended child in a motor
vehicle.
Our scope and standard of review when considering challenges to the
sufficient of the evidence are as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable
doubt. [T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
It is within the province of the fact-finder to determine the weight
to be accorded to each witness's testimony and to believe all, part,
or none of the evidence. The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Moreover, as an appellate court, we may
not re-weigh the evidence and substitute our judgment for that of
the fact-finder.
Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa. Super. 2017)
(citations and quotation marks omitted).
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In his first issue, Murchison claims that there was insufficient evidence
to convict him of disorderly conduct. According to Murchison, the evidence
did not establish that he either “engaged in fighting or threatening” or
“engaged in violent or tumultuous behavior” as required by 18 Pa.C.S.A.
section 5503(a)(1). Instead, Murchison maintains that the evidence merely
showed that he was argumentative, bothersome, and did not follow the
officer’s directive to return to his vehicle. Murchison’s Brief, at 12, 23.
Pennsylvania's disorderly conduct statute states in relevant part:
(a) Offense defined. - 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 in violent or tumultuous
behavior;
****
(c) Definition. - As used in this section the word "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. Under the statute, “whether a defendant's words or acts
rise to the level of disorderly conduct hinges upon whether they cause or
unjustifiably risk a public disturbance.” Commonwealth v. Hock, 728 A.2d
943, 946 (Pa. 1999). “The cardinal feature of the crime of disorderly conduct
is public unruliness which can or does lead to tumult and disorder.” Id. (citing
Commonwealth v. Greene, 189 A.2d 141, 144 (Pa. 1963)). However,
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the offense of disorderly conduct is not intended as a catchall for
every act which annoys or disturbs people; it is not to be used as
a dragnet for all the irritations which breed in the ferment of a
community. It has a specific purpose; it has a definite objective,
it is intended to preserve the public peace[.]”
Id. As such, the particular circumstances surrounding the conduct are
important to consider. See id.Based upon our review of the record and viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, we conclude
that the Commonwealth presented sufficient evidence for the trial court to find
Murchison guilty of disorderly conduct. Although the court did not specify
which prohibited conduct Murchison engaged in, the evidence showed that he
engaged in tumultuous behavior.
Notably, “Tumultuous” is not defined in Section 5503 or elsewhere in
the Crimes Code. However, we previously have noted:
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.” “Tumult” is
relevantly defined as “a disorderly agitation . . . of a crowd
[usually] with uproar and confusion of voices,” or “a violent
outburst.”
Commonwealth v. Love, 896 A.2d 1276, 1285 (2006) (quoting Merriam
Webster's Collegiate Dictionary 1271-1272 (10th ed.1996)). It also means
“marked by tumult; loud, excited, and emotional.” 2 Further, “tumult” is
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2 “Tumultuous.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/tumultuous. Accessed 29 Dec.
2022.
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defined, in relevant part, as “disorderly agitation or milling about of a crowd
usually with uproar and confusion of voices: COMMOTION . . . . HUBBUB,
DIN.”3
At the hearing, the responding officer testified that, when the firefighters
arrived, Murchison started arguing with the firemen. He blocked them from
entering his house, stating they were not allowed in because they were going
to destroy it. When the officer tried to talk to him, Murchison became
argumentative with him. The officer tried to get Murchison to go to his vehicle,
but he refused. Despite the officer’s efforts, Murchison would not calm down
and continued to act out of control. As a result, the officer had to handcuff
Murchison and detain him in the patrol car.
This evidence showed that his conduct was “marked by tumult.” As the
fire burned, Murchison acted out; he was “loud, excited, and emotional;” he
created a commotion. His conduct was not merely annoying or irritating. He
distracted the firefighters and physically impeded them from fighting the fire
that was spreading from house to house in his neighborhood. Murchison made
an already tense situation more intense, thereby disrupting the public and the
authorities’ ability to do their jobs. Under these circumstances, Murchison’s
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3 “Tumult.” Merriam Webster.com. Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/tumult. Accessed 29 Dec.
2022.
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unruly conduct rose to a level where it caused or unjustifiably risked a public
disturbance.
Murchison’s first issue entitles him to no relief.
In his second issue, Murchison claims that the evidence was insufficient
to convict him of leaving an unattended child in a motor vehicle. Specifically,
he maintains that his two older children and a neighbor stayed with the baby,
that the car was visible from where he was, and the children were not in
danger. Therefore, according to Murchison, the Commonwealth failed to
establish all the elements of this offense and his conviction should be reversed.
Murchison’s Brief at 13, 31.
The statute which prohibits leaving a child unattended in a motor vehicle
states, "A person driving or in charge of a motor vehicle may not permit a
child under six years of age to remain unattended in the vehicle when the
motor vehicle is out of the person's sight and under circumstances which
endanger the health, safety or welfare of the child." 75 Pa. C.S. § 3701.1(a).
Based upon our review of the record and viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, we conclude
that the evidence was insufficient for the trial court to find Murchison guilty of
leaving an unattended child in a motor vehicle. We reach this decision for the
following reasons.
First, the evidence failed to show that a child under 6 years of age was
unattended in a motor vehicle. Although Murchison left his newborn baby
(obviously under six) in the car, the baby, who was in a carrier, was not left
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unattended.4 The Commonwealth’s witness indicated that Murchison’s two
other children, who were around 9 or 10 years old, were in the car with the
baby. No evidence was presented that the children were unable to attend to
the baby or alert someone if there was problem.
Furthermore, the evidence did not show that the vehicle was out of
Murchison’s sight. Again, the Commonwealth’s witness indicated that
Murchison parked the vehicle just across the street from his house. This was
maybe 100 feet away. Although Murchison may not have been paying
attention because he was arguing with the firefighters and police, that is not
equivalent to the vehicle being out of his sight. In fact, when Murchison was
detained and placed in the police car, a point when he could not get to the
baby if needed, only then did a police officer stand by the car until Murchison
was released.
Accordingly, we reverse Murchison’s conviction for leaving an
unattended child in a motor vehicle and dismiss this charge.
Judgment of sentence as to disorderly conduct affirmed; conviction for
an unattended child in a motor vehicle reversed. Jurisdiction relinquished.
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4 Although Murchison claimed that his neighbor stayed at the car with the
children, the trial court did not find the neighbor’s testimony credible.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
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