Com. v. Fahey, M.

J-S36041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MORGAN B. FAHEY :
:
Appellant : No. 1914 MDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000433-2018
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 18, 2019
Morgan B. Fahey (Fahey) appeals from the judgment of sentence
entered in the Court of Common Pleas of Cumberland County (trial court)
which, following a summary bench trial, found her guilty of Disorderly
Conduct. She now challenges the sufficiency of evidence for her conviction.
We affirm.
Fahey was a temporary laboratory technician for World Energy at their
plant in Lower Allen Township, Cumberland County. During her employment,
Fahey became upset that she was a temporary employee and told her co-
workers that she planned to sue if World Energy did not hire her as a full-time
employee. World Energy learned of these statements and terminated Fahey’s
employment.
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* Retired Senior Judge assigned to the Superior Court.
J-S36041-19
A week after the termination, Fahey tried to call the local fire department
to report a chemical leak at World Energy’s plant. The fire department told
her to call Cumberland County Communications, which she did. Fahey told
the dispatcher that there was a methanol leak at the World Energy plant as
well as open containers of flammable substances. Based on this, the
dispatcher notified multiple Lower Allen departments, including police, fire and
emergency medical services, all of who immediately responded to World
Energy’s plant. In total, at least four emergency vehicles were dispatched to
check on Fahey’s claim.
Upon arriving, the responders spoke to the plant manager. He told them
that there was no leak and that he believed it was a false alarm made by
Fahey. The manager based this on a Facebook post by Fahey from earlier
that morning. In the post, she wrote: “Well since I no longer work at World
Energy guess it’s time to make some calls. #DEP #OSHA
#Lowerallenfiredepartment #messwiththebull #getthehorns.” Despite the
plant manager’s belief, the responders still evacuated the plant, forcing all
World Energy employees to leave the facility while the fire department and a
public safety officer checked for any leaks or open containers of flammable
substances. Finding none, the responders allowed the employees to reenter
the facility and cleared the scene.
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Fahey eventually proceeded to a summary bench trial for Disorderly
Conduct, 18 Pa.C.S. § 5503(a)(4).1 At trial, Fahey testified that she saw the
methanol leak a few days before her termination. She claimed that she told
several co-workers about the leak but they did not believe her. When asked
why she did not contact anyone outside of the company, Fahey testified that
she feared World Energy would retaliate if she did so. The trial court did not
believe these claims and found Fahey guilty of Disorderly Conduct.2 She
appealed and now contends there was insufficient evidence for the trial court
to convict her of Disorderly Conduct.3
Section 5503 of the Crimes Code provides 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:
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1 The Commonwealth originally charged Fahey with misdemeanor counts of
False Alarm to Agencies of Public Safety and Disorderly Conduct. After the
charges were held for court, the Commonwealth dismissed the misdemeanor
counts but added a summary count of Disorderly Conduct to the information.
2 The trial court ordered Fahey to pay a $200 fine and the costs of prosecution.
3 “A claim challenging the evidence is a question of law. 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.... When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.” Commonwealth v. Nevels, 203 A.3d 229,
241 (Pa. Super. 2019) (ellipsis in original and citation omitted).
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***
(4) creates a hazardous or physically offensive condition by
any act which serves no legitimate purpose of the actor.
18 Pa.C.S. § 5503(a)(4).
Fahey divides her sufficiency claim into three separate arguments. First,
she contends that the Commonwealth presented insufficient evidence to
establish that she intended to or recklessly risked creating a public
inconvenience, annoyance or alarm.4 Next, Fahey argues the evidence was
also insufficient to establish that she actually created a hazardous or physically
offensive condition. Last, Fahey believes the Commonwealth did not prove
that her actions lacked a legitimate purpose in that it failed to disprove that
there actually was a leak. We find none of these arguments has merit.
As to the mens rea element, Fahey essentially asks us to credit her
version of events that there was an actual chemical leak and read her
Facebook post as meaning that she was “going to use legal means in exposing
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4 18 Pa.C.S. § 302(b)(1) provides that a “person acts intentionally with respect
to a material element of an offense when if the element involves the nature of
his conduct or a result [of his conduct], it is his conscious object to engage in
conduct of that nature or to cause such a result.” For a person to act
recklessly, 18 Pa.C.S. § 302(b)(3) provides that “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.”
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the wrongdoings of her former employer.” See Fahey’s Brief, at 15. However,
under sufficiency review, we must view the evidence in the light most
favorable to the verdict winner and give the Commonwealth the benefit of all
reasonable inferences to be drawn from the evidence. Here, the trial court
concluded that Fahey “called in the false alarm and concocted the story of the
chemical spill as retribution toward World Energy for terminating her
employment.” Trial Court Opinion (TCO), 3/19/19, at 4. There was ample
evidence to support this conclusion: the circumstances of Fahey’s recent
termination; the timing and content of her Facebook post; and the responders
finding no chemical leaks or open chemical containers. Based on all this, there
was sufficient evidence for the trial court to disbelieve Fahey’s testimony and
credit the Commonwealth’s version of events that she made a false report as
a reprisal against her former employer for terminating her.
As part of her mens rea argument, Fahey also emphasizes that she did
not call 911 but instead called the fire department first then the nonemergency
phone number for Cumberland County Communications. According to her,
this shows her lack of intent to cause a public inconvenience. We disagree.
Even if Fahey’s subjective intent was not to cause an emergency, her conduct
was clearly, at the very least, reckless in that she consciously disregarded a
substantial and unjustifiable risk that public annoyance or alarm would result
by reporting a dangerous chemical leak. See Commonwealth v. Troy, 832
A.2d 1089, 1094 (Pa. Super. 2003) (Commonwealth can establish mens rea
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for Disorderly Conduct by showing reckless disregard of the risk of public
inconvenience, annoyance or alarm, even if defendant’s intent was to send
message to certain individual). The Commonwealth, thus, presented sufficient
evidence to establish the mens rea element.5
Next, Fahey argues there was insufficient evidence that she created a
hazardous or physically offensive condition because all that occurred is
emergency personnel responded to the plant. In support, Fahey cites
Commonwealth v. Williams, 574 A.2d 1161 (Pa. Super. 1990), which
involved this Court finding that the police response to a report of public
lewdness did not constitute a hazardous condition. See id. at 1164.
However, this case differs in kind from the routine situation involved in
Williams when the police respond to a call of concern. Here, Fahey made a
false report of a chemical leak that resulted in multiple emergency vehicles
with multiple first responders being dispatched to a chemical plant. In
addition, due to the necessary evacuation, all of the World Energy employees
were forced to exit their workplace under the auspices that there was a
dangerous chemical leak. Those employees then had to wait while a public
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5 Fahey notes that the trial court stated in its Rule 1925(a) opinion that “[t]he
Commonwealth’s charging largess aside, [Fahey’s] conviction for disorderly
conduct should be sustained.” See TCO, at 5. Fahey interprets this comment
as indicating the trial court’s belief that her conduct “does not align with the
crime for which she was charged.” Fahey’s Brief, at 18, n. 22. We interpret
the trial court’s statement to mean what it says: that there was sufficient
evidence to convict for Disorderly Conduct.
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safety officer and the fire department made a thorough check of the plant.
There was no hazardous condition but there was sufficient evidence for the
trial court to conclude that the false alarm created a physically offensive
condition.
Finally, Fahey claims the Commonwealth failed to prove that her actions
did not serve a legitimate purpose. For this contention, Fahey notes that the
public safety officer admitted that he did not inspect the specific area that she
told the dispatcher was leaking. However, this argument ignores the public
safety officer’s testimony that the Lower Allen Fire Department also inspected
the “entire facility” and found no leaks. See N.T., 10/23/18, at 11. Moreover,
under sufficiency review, the evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to believe all, part or
none of the evidence presented. See Commonwealth v. Treece, 161 A.3d
992, 994 (Pa. Super. 2017) (quotation omitted). As explained above, the trial
court did not believe Fahey’s claims about the leak and there was sufficient
evidence to conclude that she falsified the methanol leak to get back at World
Energy for her recent termination. Thus, there was sufficient evidence to
conclude Fahey’s actions served no legitimate purpose.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/18/2019
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