Com. v. Fedorek

Page 893

913 A.2d 893

COMMONWEALTH of Pennsylvania v. Jennifer Ann FEDOREK, Appellant.

Superior Court of Pennsylvania.

Filed December 7, 2006.

Argued March 9, 2006.

Jason R. Lewis, Public Defender, Franklin, for appellant.

James Carbone, Assistant District Attorney, Franklin, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., JOYCE, MUSMANNO, ORIE MELVIN, TODD, KLEIN, BOWES, GANTMAN, and PANELLA, JJ.

OPINION BY FORD ELLIOTT, P.J.:

¶ 1 Jennifer Ann Fedorek appeals from the judgment of sentence entered following her conviction for disorderly conduct graded as a third degree misdemeanor pursuant to 18 Pa.C.S.A. § 5503(b). We certified this appeal for consideration en banc and now address the following issue: whether the Commonwealth must prove beyond a reasonable doubt that a defendant charged with disorderly conduct, graded as a misdemeanor of the third degree intended to cause substantial harm to the public or serious inconvenience to the public? We answer this question in the affirmative and reverse appellant's judgment of sentence.

¶ 2 The underlying facts may be summarized as follows. On the evening of May 22, 2003, Dennis Scott Martin (hereinafter "the victim") was at the Polish National Alliance Club (hereinafter "the Club") in Oil City, Pennsylvania. (Notes of testimony, 3/12/04 at 6.) The victim, who was then the Club's president, was dating Patty Schmader (hereinafter "Patty"). Patty had recently been divorced from Jack Schmader (hereinafter "Schmader"), a former friend of the victim. (Id. at 6-7.) Earlier in the day, the victim and Patty shopped for supplies for the Club. Schmader called the victim's cellular phone seeking to inform Patty that their two children were locked out of her house and that he thought she should be at home. (Id. at 7-8.)

¶ 3 While at the Club later that evening, the victim saw Schmader, appellant, who is Schmader's sister,¹ and appellant's boyfriend, Eric Hutchinson (hereinafter "Hutchinson"). The victim assumed that the three had come to the Club together. Schmader approached the victim and asked if the victim wanted to talk. The victim responded that if Schmader wished to talk, they could do so in the victim's office. (Id. at 10.) Schmader stated that they could talk outside, and all four left the bar. (Id. at 10-11.)

¶ 4 Once in the parking lot, Schmader began yelling at the victim about the victim's relationship with Patty and the children. Schmader repeatedly poked the victim in the chest as he yelled; he was eventually standing so close the victim could feel the spray of his saliva. (Id. at 11-12.) The victim continued to back away as Schmader advanced. In this fashion, the two men traversed the length of the Club and turned the corner toward the delivery entrance. (Id. at 12-13.) The victim testified that appellant stood behind Schmader yelling: "Come on, Jack, hurt him. F____ him up. Hurt him." (Id. at 12-13.) The victim also observed Hutchinson trying to calm appellant down.

¶ 5 The victim and Schmader continued to argue. When the victim interjected words questioning Schmader's ability as a parent, Schmader grabbed the victim about the shoulders and Hutchinson grabbed him around the neck; the victim began to have difficulty breathing and started to panic. (Id. at 13-14, 16.) Eventually, the victim fell to the ground where he hit his head and was kicked in the left side. (Id. at 14.) At some point, as the grip on his neck slackened, the victim called out for help. (Id. at 16-17.) He then saw appellant in the driver's seat of Schmader's Jeep; she had the driver's door open and was yelling for Schmader and Hutchinson to "get in and get the hell out of here." (Id. at 17.) Appellant, Schmader, and Hutchinson left the scene in the Jeep.

¶ 6 For her role in the incident, appellant was charged with one count of simple assault graded as a second degree misdemeanor, one count of summary harassment, and one count of disorderly conduct graded as a third degree misdemeanor.² Hutchinson was similarly charged. Schmader pled guilty to simple assault, and all other charges against him were dismissed.

¶ 7 On March 12, 2004, appellant and Hutchinson were tried together before a jury. At the close of the Commonwealth's case, appellant made a motion for judgment of acquittal, arguing that the Commonwealth failed to prove appellant intended to harm the victim. (Id. at 77, 79.) The motion was denied. Schmader then testified for the defense that appellant and Hutchinson had not accompanied him to the Club on the night of the assault but had come independently looking for him. He also testified that when the assault occurred, appellant and Hutchinson were on the other side of the Club building and that he left the scene alone in the Jeep. (Id. at 100, 102, 104-105.)

¶ 8 After deliberation, the jury certified that it was hopelessly deadlocked as to both appellant and Hutchinson on the simple assault, and the trial court declared a mistrial on that count. (Id. at 132-133.) The jury, however, found both appellant and Hutchinson guilty of disorderly conduct. The trial court, reasoning that the summary harassment offenses merged with the disorderly conduct offenses, declared both appellant and Hutchinson not guilty of summary harassment.

¶ 9 Appellant filed a post-trial motion for "judgment non obstante veredicto"³ in which she again sought acquittal on the charge of disorderly conduct. Relying on this court's decision in Commonwealth v. Smith, 811 A.2d 578 (Pa.Super.2002), she argued that there was no evidence of her intent to cause substantial harm to the public or serious inconvenience to the public; thus, the conviction graded as a third degree misdemeanor could not stand. Appellant claimed that, at best, the Commonwealth had proven summary disorderly conduct. (Certified record at 18.) By order dated March 16, 2004, the trial court denied the post-trial motion.

¶ 10 On April 19, 2004, appellant was sentenced to intermediate punishment with conditions including supervision of up to six months, a $300 fine, 30 hours of community service, and restitution for the victim's medical costs. This appeal followed. At the trial court's direction and pursuant to Pa.R.A.P 1925(b), appellant filed a concise statement of matters complained of on appeal. On May 6, 2004, the trial court filed an opinion in support of its denial of appellant's post-trial motion.

¶ 11 On appeal, appellant questions the sufficiency of the evidence to support the conviction of disorderly conduct graded as a third degree misdemeanor. Specifically, she argues the Commonwealth did not prove that she had specific intent to cause substantial harm to the public or serious public inconvenience. We are thus presented with a preliminary issue of statutory interpretation. Statutory interpretation is an issue of law over which we exercise plenary review. Commonwealth v. Magliocco, 584 Pa. 244, 247, 883 A.2d 479, 481 (2005); see also Commonwealth v. Dellisanti, 583 Pa. 106, 112 n. 8, 876 A.2d 366, 369 n. 8 (2005) (recognizing that what this court had treated as an issue of sufficiency actually presented a question of statutory construction).

¶ 12 The statute at issue, 18 Pa.C.S.A. § 5503, codifies the criminal offense of disorderly conduct and provides the following:

(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:

(1) engages in fighting or threatening, or in violent or tumultuous behavior;

(2) makes unreasonable noise;

(3) uses obscene language, or makes an obscene gesture; or

(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

(b) Grading.—An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.

(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.

¶ 13 Appellant concedes that there is sufficient evidence to prove the offense of disorderly conduct.⁴ Had this concession not been made, we would conclude that the offense itself is supported by sufficient evidence. See Commonwealth v. Whritenour, 751 A.2d 687 (Pa.Super.2000), appeal denied, 563 Pa. 701, 761 A.2d 550 (2000) ("Public" elements of offenses of public drunkenness and disorderly conduct were met, though road on which defendant was arrested was located in a private community; the community was "public," in that it consisted of residents of the homes of the community, their guests and employees, as well as visitors attending religious events, users of the public library, and delivery people, all of whom utilized the road); See Commonwealth v. Young, 370 Pa.Super. 42, 535 A.2d 1141 (1988) (affirming conviction for summary disorderly conduct where male appellant entered women's restroom in a dormitory and opened the stall occupied by female student), appeal denied, 518 Pa. 649, 544 A.2d 961 (1988); Commonwealth v. Coolbaugh, 272 Pa.Super. 491, 416 A.2d 563 (1979) (affirming conviction for summary disorderly conduct where appellant precipitated a scuffle between himself and another at night on an icy roadway which recklessly created risk of public inconvenience, annoyance, or alarm).

¶ 14 Appellant contends, however, that the evidence is sufficient only to prove summary disorderly conduct. Specifically, appellant claims the Commonwealth failed to prove she had the proper mens rea for the offense to be graded as a...