Com. v. Fedorek

946 A.2d 93

COMMONWEALTH of Pennsylvania, Appellant v. Jennifer Ann FEDOREK, Appellee.

No. 25 WAP 2007.

Supreme Court of Pennsylvania.

Argued March 3, 2008.

Decided April 30, 2008.

James Paul Carbone, Venango County Dist. Attorney's Office, for the Com. of PA, appellant.

Jason Richard Lewis, Venango County Public Defender's Office, Christopher Erik Rutkowski, for Jennifer Ann Fedorek, appellee.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER and McCAFFERY, JJ.

OPINION

Justice McCAFFERY.

In this appeal, we are asked to determine whether the Commonwealth must prove that an offender acted with intent to cause substantial "public" harm or serious "public" inconvenience in order to grade the offender's disorderly conduct conviction as a misdemeanor of the third degree pursuant to 18 Pa.C.S. § 5503(b). Because we determine that 18 Pa.C.S. § 5503(b) requires the Commonwealth to prove in a third-degree misdemeanor disorderly conduct prosecution that the offender acted with intent to cause substantial harm or serious inconvenience, rather than to prove substantial "public" harm or serious "public" inconvenience, and because the Commonwealth did prove in this case that Appellee, Jennifer Ann Fedorek, acted with intent to cause substantial harm, we reverse the Superior Court's reversal and reinstate the judgment of sentence.

On the evening of May 22, 2003, Dennis Scott Martin (the victim) was assaulted by Jack Schmader outside of a social club after Appellee, who is Schmader's sister or stepsister, urged Schmader to "hurt him" and "f___ him up." The victim, who was then the club's president, was dating Schmader's ex-wife at the time. On the evening in question, the victim was approached at the club by Schmader, Appellee, and Appellee's boyfriend, Eric Hutchinson. Schmader asked the victim to talk with him outside of the club, the victim agreed, and all four left the building together.

Once in the parking lot, Schmader began yelling at the victim about the victim's relationship with Schmader's ex-wife and children. Schmader repeatedly poked the victim in the chest as he yelled, and the victim continued to back away as Schmader advanced. This went on for some time; indeed, Schmader backed the victim 25 to 30 feet along the front length of the club and then around the building's corner for another 10 to 15 feet toward its delivery entrance. The victim later testified that Appellee stood behind Schmader during this time yelling "Come on, Jack, hurt him. F___ him up. Hurt him."

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 the victim around the neck. The victim began to have difficulty breathing and felt a sensation of panic. When the grip on his neck slackened, the victim yelled out for help. Eventually, the victim fell or was pushed to the ground, hit his head, and was kicked by one of his assailants in the left side. The victim then saw Appellee in the driver's seat of Schmader's Jeep. She had the driver's door open and yelled for Schmader and Hutchinson to "get in and get the hell out of here." Appellee, Schmader, and Hutchinson left the scene in that vehicle.

For her role in the incident, Appellee was charged with one count of simple assault graded as a second-degree misdemeanor,¹ one count of disorderly conduct graded as a third-degree misdemeanor,² and one count of summary harassment.³ Hutchinson was similarly charged.⁴

Appellee and Hutchinson were tried together before a jury, and Appellee's motion for dismissal at the close of the Commonwealth's case was denied. After deliberation following trial, the jury certified that it was hopelessly deadlocked on the simple assault charges against both Appellee and Hutchinson, and the trial court declared a mistrial on those counts. However, the jury found Appellee and Hutchinson guilty of disorderly conduct as a misdemeanor of the third degree. The trial court, reasoning that the summary harassment offenses merged with the disorderly conduct offenses, found Appellee and Hutchinson not guilty of the summary charges. Thereafter, the court denied Appellee's post-trial motion for judgment n.o.v., seeking acquittal on the charge of disorderly conduct based on insufficient evidence; and Appellee was sentenced to intermediate punishment, fines, community service, and restitution for the victim's medical costs. Appellee filed a timely appeal to the Superior Court.

The offense of disorderly conduct is defined as follows:

§ 5503. Disorderly conduct

(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. § 5503 (emphasis added).

As can be deduced from Section 5503, disorderly conduct is a summary offense unless it is proven at trial that the offender intended to cause "substantial harm" or "serious inconvenience," in which case the crime is graded as a third-degree misdemeanor. Appellee renewed before the Superior Court the same argument she had raised before the trial court, to wit, that to sustain a third-degree misdemeanor conviction for disorderly conduct, the Commonwealth had to prove that Appellee intended to cause substantial "public" harm or serious "public" inconvenience, despite the absence of the word "public" in the grading paragraph of the statute.⁵

A divided en banc panel of the Superior Court agreed with Appellee's arguments, reversed the judgment of sentence, and remanded for resentencing. Commonwealth v. Fedorek, 913 A.2d 893 (Pa.Super.2006) (en banc). In arriving at its decision, the court majority, authored by President Judge Ford Elliott, focused on the fact that the indisputable intent of Section 5503 is to preserve "public" peace and prevent "public" disturbance. See, e.g., Commonwealth v. Greene, 410 Pa. 111, 117, 189 A.2d 141, 145 (1963) (holding that the crime of disorderly conduct "is intended to preserve the public peace"). Thus, the court held that although the word "public" is absent from Section 5503(b), the clear intent of the statute compelled the conclusion that a third-degree misdemeanor conviction for disorderly conduct must be based on evidence of the offender's intent to cause substantial "public" harm or serious "public" inconvenience.⁶

Having determined that a third-degree misdemeanor conviction for disorderly conduct required proof of intent to cause substantial harm to the public or serious public inconvenience, the Superior Court majority determined that the record in the instant case failed to show evidence rising to this level of proof. The court stated:

The Commonwealth did not demonstrate that [Appellee's] actions posed a wider threat or were intended to affect the other patrons of the bar. There is no indication her actions in the parking lot were intended to cause substantial harm or inconvenience to the general public. In this instance, there is simply no evidence that [Appellee's] ambitions in goading on the fight ranged any further than harm to the victim's person, for which she was charged separately with simple assault. At the most, her actions created a risk of public inconvenience, annoyance, or alarm, a summary offense. Thus, the evidence is insufficient to prove the requisite intent to sustain the conviction graded as a third[-]degree misdemeanor.

Fedorek, supra at 900(emphasis in original).

Judge Orie Melvin, joined by Judges Joyce, Bowes, and Gantman, dissented. The dissent concluded that the majority's holding ignored the plain, unambiguous language of the disorderly conduct statute because the majority had inserted the word "public" in Section 5503(b) when the General Assembly had not done so. Further, the dissent concluded that under basic principles of statutory construction, the majority's holding inappropriately conflated the definition of the offense of disorderly conduct with the language concerning the grading of the offense.⁷ Moreover, the dissent determined that the evidence in the instant case was sufficient to support a conviction for third-degree misdemeanor disorderly conduct. The dissent concluded: "A jury could reasonably infer from [the] evidence, which is both direct and circumstantial, that [Appellee] intended through her obnoxious goading to cause `substantial harm' or `serious inconvenience' within the meaning of 18 Pa.C.S.A. § 5503(b)." Fedorek, supra at 905 (Orie Melvin, J., dissenting).

We granted the Commonwealth's Petition for Allowance of Appeal as to the following two questions:

1. Whether a divided en banc panel of the Superior Court erred in interpreting the statutory definition of disorderly conduct, graded as a misdemeanor of the third degree, 18 Pa.C.S. § 5503(b), as requiring the Commonwealth to prove that the harm or inconvenience resulting from the conduct of the accused be a "substantial public harm" or a "substantial public inconvenience" despite the absence of...