J-S51028-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ROBERT W. KORTMAN,

                         Appellant                    No. 40 MDA 2014


         Appeal from the Judgment of Sentence December 5, 2013
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0001970-2013


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.*:                               FILED MAY 14, 2015

      Robert W. Kortman appeals from the aggregate judgment of sentence

of one to four years imprisonment imposed by the trial court after a jury

found him guilty of recklessly endangering another person (“REAP”),

resisting arrest, disorderly conduct, and harassment. After careful review,

we reverse.

      Pursuant to a court order, Appellant was to meet with his former

paramour in the West Reading Borough building parking lot to exchange

physical custody of their child.       Accordingly, on April 19, 2012, at

approximately 6:30 p.m., Appellant was waiting for his ex-girlfriend to

arrive. At the time, Appellant had already been waiting for approximately

one-half hour and, ultimately, his former girlfriend never arrived.



* This case was reassigned to this author on March 9, 2015.
J-S51028-14




      West Reading Police Sergeant Keith Phillips, who was not on duty, and

was not in uniform, observed Appellant seated in his own vehicle in the

parking lot. Sergeant Phillips approached Appellant, identified himself as a

police officer, and questioned Appellant as to both his identity and presence.

Appellant refused to speak with Sergeant Phillips and called 911 to report an

individual claiming to be a police officer who would not produce a badge.

Although Sergeant Phillips was not in uniform and did not display a badge,

he was wearing a shirt with a police badge embroidered on it, which also

said, “West Reading Police Department” on the left sleeve. The 911 operator

instructed   Appellant   to   get   the   individual’s    license   plate   number.

Accordingly, Appellant proceeded to attempt to photograph the license plate

of Sergeant Phillip’s civilian vehicle, a pickup truck.

      Dissatisfied that Appellant would not answer his queries, Sergeant

Phillips called for uniformed police to respond. Officer Marc Oxenford, in full

uniform, then arrived on the scene in a marked police cruiser.               Officer

Oxenford attempted to question Appellant, who was still on the telephone

with the 911 operator. Sergeant Phillips also pulled his pickup truck toward

the rear of Appellant’s car, but not directly behind it.       In addition, a third

police officer arrived. Officer Edward DeLozier, Jr., in full uniform, drove his

police vehicle directly in front of Appellant’s car and parked it three to five




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feet from the front of Appellant’s vehicle. According to Officer DeLozier, it

appeared that Appellant was arguing with the two other officers.

      Police continued to attempt to question Appellant and demanded that

he exit his vehicle.      When Appellant continued to disregard police

questioning, Officer DeLozier placed his right foot inside the front driver’s

side door area of Appellant’s car in order to reach inside and seize

Appellant’s keys.    As he did so, Appellant’s car, which had a manual

transmission, stalled out and lurched forward. When this occurred, Officer

Oxenford was to the rear of the car on the driver’s side. Officer DeLozier

and Officer Oxenford stepped further away from the vehicle, and thereafter

Officer DeLozier told Appellant that he was placing him under arrest. Officer

DeLozier then reached into the vehicle and grabbed Appellant.       Appellant

leaned back and shed Officer DeLozier’s hold. Officer DeLozier then pulled

Appellant partially from the car. As he did so, Appellant placed his foot on

the ground and braced himself against being pulled further. Officer DeLozier

continued to pull Appellant to the ground and, with the aid of Officer

Oxenford, handcuffed him. While police attempted to handcuff Appellant, he

tried to move his hands to the front of his body.

      After securing Appellant, the police placed him in the back of Officer

DeLozier’s police vehicle, at which point Appellant asked why he was being

arrested and asserted that the police were “going to take him to prison, strip



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him,   abuse    him,    and   rape   him.”    N.T.,   11/19/13,   at   130.   The

Commonwealth charged Appellant with REAP, resisting arrest, and two

counts each of disorderly conduct and harassment. Appellant proceeded to

a jury trial.   The jury acquitted Appellant of one disorderly conduct and

harassment charge and found Appellant guilty of the remaining offenses.

The court sentenced Appellant to the aforementioned sentence. This timely

appeal ensued.         The trial court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the trial court authored its Rule 1925(a) opinion.

The matter is now ready for our review.

       Appellant presents the following seven sufficiency of the evidence

claims for this Court’s consideration.

   1. Whether the evidence presented was sufficient as a matter of
      law to support Appellant’s conviction for Recklessly Endangering
      Another Person, 18 Pa.C.S.A. § 2705, as it was not established
      that Appellant placed or may have placed either Officer Edward
      DeLozier or Officer Marc Oxenford in danger of death or serious
      bodily injury where neither officer was in a position to be struck
      by Appellant’s vehicle in any manner?

   2. Whether the evidence presented was sufficient as a matter of
      law to support Appellant’s conviction for Recklessly Endangering
      Another Person, 18 Pa.C.S.A. § 2705, as it was not established
      that Appellant consciously ignored a great and unjustifiable risk
      that his actions would cause either Officer Edward DeLozier or
      Officer Marc Oxenford to be seriously injured where the risk of
      injury was so serious that Appellant’s actions were a gross
      deviation from the standard of conduct that a reasonable person
      in his situation would have followed where Appellant simply



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     removed his foot from the clutch, causing his car to stall and
     lurch forward a minimal distance?

  3. Whether the evidence presented was sufficient as a matter of
     law to support Appellant’s conviction for Resisting Arrest, 18
     Pa.C.S.A. § 5104, as it was not established that Appellant
     resisted a lawful arrest by means justifying or requiring
     substantial force to overcome his resistance where he merely
     argued and/or scuffled with the officers?

  4. Whether the evidence presented was sufficient as a matter of
     law to support Appellant’s conviction for Disorderly Conduct, 18
     Pa.C.S.A. § 5503(a)(1), as it was not established that Appellant
     engaged in fighting, threatening, violent, or tumultuous behavior
     directed at producing or inciting imminent lawless actions or
     immediate violent response where Appellant merely argued with
     the officers and voiced his concern over being arrested and
     imprisoned?


  5. Whether the evidence presented was sufficient as a matter of
     law to support Appellant’s conviction for Disorderly Conduct, 18
     Pa.C.S.A. § 5503(a)(1), as it was not established that Appellant
     argued with the officers and voiced his concerns over being
     arrested and imprisoned with the intent to cause either
     substantial harm to the public by way of annoyance or alarm or
     serious public inconvenience?


  6. Whether the evidence presented was sufficient as a matter of
     law to support Appellant’s conviction for Harassment, 18
     Pa.C.S.A. § 2709(a)(4), as it was not established that Appellant
     communicated to Officer DeLozier or Officer Oxenford any words
     or language that the average person would find lewd, lascivious,
     threatening, or obscene where Appellant voiced his concerns
     over being arrested and imprisoned?


  7. Whether the evidence presented was sufficient as a matter of
     law to support Appellant’s conviction for Harassment, 18
     Pa.C.S.A. § 2709(a)(4), as it was not established that Appellant
     communicated to Officer DeLozier or Officer Oxenford any lewd,
     lascivious, threatening, or obscene words or language with the


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      intent to annoy, harass, or alarm Officer DeLozier or Officer
      Oxenford but rather that Appellant merely voiced his concerns
      over being arrested and imprisoned?

Appellant’s brief at 4-5.

      In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.     When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.   Id.   This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Appellant’s first two sufficiency claims pertain to his REAP charge.

Appellant argues that “given the positions of all of the police officers, it



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would have been impossible for the vehicle to make even the most minor

contacts with any of [their] bod[ies] unless the law of physics were

suspended and the vehicle had somehow lurched sideways.”            Appellant’s

brief at 12 (emphasis removed). The question here is whether Appellant’s

action of starting his car and putting it in gear before it stalled out, thereby

causing the car to lurch forward, recklessly put either Officer DeLozier or

Officer Oxenford in danger of death or serious bodily injury. We find that

the evidence presented by the officers does not prove that Appellant

recklessly placed or may have placed the officers in danger of death or

serious bodily injury.    See 18 Pa.C.S. § 2705 (person must recklessly

engage “in conduct which places or may place another person in danger of

death or serious bodily injury.”).

      There is no dispute that the officers were not in danger of death.

Thus, we focus on whether Appellant’s conduct was criminally reckless and if

the officers were in danger of serious bodily injury. The Crimes Code defines

criminal recklessness as follows.

      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.

18 Pa.C.S. § 302(b)(3).


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     In addition, serious bodily injury is defined as “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.”      18 Pa.C.S. § 2301.      The danger to the officers,

according to their own testimony, is that Appellant could have driven over

them or run over their feet. Viewing the evidence in a light most favorable

to the Commonwealth, the consistent and repeated testimony by the officers

was that the car lurched forward by stalling out. This occurs in a manual

transmission vehicle when the vehicle is in gear and a person removes his or

her foot from the clutch too quickly without pressing the gas pedal

adequately.

     Hence, the evidence establishes that the car lurched and stalled

because Appellant’s car was on and in gear and his foot was no longer on

the clutch. There is no evidence that the engine was revved and Appellant

pressed the gas pedal. Appellant’s conduct, therefore, was to cause his car

to lurch forward one time, not drive the vehicle. The evidence to infer that

Appellant intended to drive away is that he turned his vehicle on and it was

in gear. However, the fact that Appellant’s car stalled out because he did

not press the gas pedal while releasing the clutch conclusively demonstrates

that he was not attempting to drive; thus, any such inference that he would




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drive away is not reasonable.1 Indeed, the evidence at trial was undisputed

that a police vehicle pulled directly in front of Appellant’s car in an attempt

to block him in his space. Specifically, Appellant had backed into a parking

spot.    A cement parking block was located behind Appellant’s car and he

never attempted to drive backward. Officer DeLozier pulled his police sport

utility vehicle three to five feet directly in front of Appellant’s car, with the

two vehicles forming a t-shape.           Appellant could not have driven forward

more than five feet, and in fact did not drive forward.            Based on the

testimony, Appellant would had to have sharply turned his vehicle’s wheels

to the right to even attempt to exit. There is no testimony to that effect.

        Officer Oxenford testified that he did not see the cars wheels move.

However, Officer DeLozier, who had his right foot in the front driver’s side

door area so as to remove Appellant’s keys, did state that the car moved

approximately three feet forward when it stalled.           Thus, considering the

evidence in a light most favorable to the Commonwealth, we infer that the

wheels moved. Nonetheless, the vehicle lurching forward, at most three feet

but obviously less than five feet, would not have put any of the officers in

danger of serious bodily injury.         The back wheels of Appellant’s car were
____________________________________________


1
  We are aware that beginners learning to drive a manual transmission do
stall out when attempting to drive. There is absolutely no evidence to infer
that Appellant was learning how to drive a manual transmission.




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more than three feet from Officer DeLozier’s feet, which according to his own

testimony were by the front of the front door of Appellant’s car. Thus, there

is no probability that the car’s momentary lurch placed the officer in danger

of serious bodily injury.        Nor is it a reasonable inference based on the

evidence that Appellant acted in a criminally reckless fashion by removing

his foot from the clutch of his vehicle when police were reaching inside his

car to turn it off. We therefore reverse Appellant’s conviction for REAP. 2


____________________________________________


2
  The learned dissent erroneously infers that we have suggested that expert
testimony was needed to determine that “having one’s feet run over by a
car” could lead to serious injury. Dissent, at 8. Nowhere have we suggested
or implied that expert testimony is necessary. Frankly, having one’s foot run
over can result in serious bodily injury. What we have held is that based on
each of the officers’ testimony, it was not possible for their feet to get run
over when the car stalled. Equally important, there is insufficient evidence
that Appellant had the requisite criminal intent. The dissent appears to
believe that the mere starting of the car and placing it in gear caused the
officers to be in danger of serious bodily injury or showed an intent to
seriously harm the officers. See id. at n.7. That position is untenable.
Indeed, unless police had probable cause or reasonable suspicion to have
detained him, Appellant should have been free to go.

       Pointedly, the actions of the police in this matter prior to the car
stalling out likely constituted an unlawful investigative detention. No person
would feel free to leave with three armed officers on the scene, a police SUV
parked directly in front of the car so as to prevent easy egress, and other
police cars preventing an exit to the left without sideswiping a police vehicle.
Further, one officer was trying to take Appellant’s keys before Appellant’s car
lurched, which was the reason for the officer having one foot inside the car.
There was no evidence of criminal activity on Appellant’s part and he should
have been free to leave. While before the arrival of uniformed police,
Appellant did call 911 to complain of another officer who would not display
(Footnote Continued Next Page)


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      Appellant also challenges the sufficiency of the evidence relative to his

resisting arrest conviction.         To be found guilty of resisting arrest, the

Commonwealth must prove that the individual, “with the intent of preventing

a public servant from effecting a lawful arrest or discharging any other duty,

the person creates a substantial risk of bodily injury to the public servant or

anyone else, or employs means justifying or requiring substantial force to

overcome the resistance.” 18 Pa.C.S. § 5104.3 Running away, arguing with,

                       _______________________
(Footnote Continued)

his badge, this was not a mere encounter nor were the police assisting
Appellant.
3
   Under modern Pennsylvania law, one has no right to resist arrest, even if
the arrest is unlawful. See Commonwealth v. Biagini, 655 A.2d 492 (Pa.
1995); 18 Pa.C.S. § 505(b)(1)(i). This was a change in the common law
that dated to the early days of the American republic. See Andrew P.
Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting Individual
Freedom?, 46 Drake L.Rev. 383 (1997). The United States Supreme Court
in John Bad Elk v. U.S., 177 U.S. 529, 535 (1900), outlined that at
common law, “If the officer had no right to arrest, the other party might
resist the illegal attempt to arrest him, using no more force than was
absolutely necessary to repel the assault constituting the attempt to arrest.”
The United States Supreme Court also recognized in Wolf v. Colorado, 338
U.S. 25 (1949), overruled in part on other ground, Mapp v. Ohio, 367 U.S.
643 (1961), that “One may also without liability use force to resist an
unlawful search.”     Wolf, supra at 33 n.1 (citing Commonwealth v.
Martin, 105 Mass. 178 (1870); State v. Mann, 27 N.C. 45 (1844)); cf.
State v. Curtis, 2 N.C. 471 (1797) (“as the officer did not tell Curtis for
what he arrested him, and the warrant he had was not under seal, Curtis
who resisted, and beat him for making the arrest, was acquitted.”); Coyle v.
Hurtin, 10 John 85 (N.Y. 1813); State v. Worley, 33 N.C. 242, 243 (1850)
(“a seal is essential to every warrant, issued by a magistrate to arrest any
person upon a criminal charge. If there be no seal, the precept is void and
affords no protection to the officer attempting to execute it; and, if its
(Footnote Continued Next Page)


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or minor scuffling with police is insufficient. See Commonwealth v. Miller,

475 A.2d 145 (Pa.Super. 1984) (fleeing from police alone is not resisting

arrest); Comment to 18 Pa.C.S. § 5104 (“This section changes existing law

somewhat by not extending to minor scuffling which occasionally takes place

during an arrest.”); Commonwealth v. Rainey, 426 A.2d 1148 (Pa.Super.

1981).4

      In Rainey, an inebriated Rainey believed he had entered his friend’s

apartment and used the bathroom therein. However, his friend had moved

and no longer resided at the apartment. Rainey then passed out on the floor

of the apartment.        The resident of the apartment above telephoned police
                       _______________________
(Footnote Continued)

execution is resisted by the defendant, he is guilty of no offence against the
law, though, in doing so, the person of the officer be assaulted.”); State v.
Crocker, 1874 Del. LEXIS 16.
4
   The resisting arrest statute is “derived from” the Model Penal Code.
Comment to 18 Pa.C.S. § 5104. The comment to the Model Penal Code
provision reads in relevant part,

      This provision covers a person who, for the purpose of
      preventing a lawful arrest, “creates a substantial risk of bodily
      injury” or “employs means justifying or requiring substantial
      force to overcome the resistance.” This language exempts
      from liability nonviolent refusal to submit to arrest and
      such minor acts of resistance as running from a policeman or
      trying to shake free of his grasp. The policy judgment
      underlying this curtailment of coverage is that authorizing
      criminal punishment for every trivial act of resistance would
      invite abusive prosecution.

Comment to Model Penal Code § 242.2 (emphases added).



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after hearing the toilet flush.   Police responded and awakened Rainey to

place him under arrest.   Rainey attempted to leave but was restrained by

the officer. A second officer then entered the apartment and placed Rainey

against a wall and frisked him. That officer then transported the appellant to

a police van.   Upon reaching the police vehicle, Rainey attempted to flee.

The officer grabbed Rainey and Rainey “began to shake himself violently, to

wiggle and squirm in an attempt to free himself of the officer's grasp.”

Rainey, supra at 1149.

      A third officer arrived and struck Rainey in the head with a nightstick.

Rainey continued to struggle, and one officer began to choke Rainey in an

attempt to subdue him, but relented when Rainey could not breathe. The

original officer who responded, and who had been interviewing the person

who called police, returned to aid his fellow officers. The three officers were

then able to handcuff Rainey.      At trial, the testimony was that Rainey

“merely attempted to squirm, wiggle, twist and shake his way free of their

grasp.” Id. This Court found insufficient evidence to find Rainey guilty of

resisting arrest.

      In contrast, in Commonwealth v. Lyons, 555 A.2d 920 (Pa.Super.

1989), deputy sheriffs attempted to arrest the defendant.        Lyons, in an

attempt to elude capture, “ran into the middle of Lycoming Creek and

attempted to swim downstream with the current.”        Lyons, supra at 925.



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The temperature of the creek was frigid and it “had a slippery streambed

and a swift current.” Id. Two deputy sheriffs pursued Lyons into the creek.

One deputy sheriff, “after three unsuccessful attempts, managed to get a

grip of [Lyons] who was kicking and struggling to get away.” Id. (italics in

original). Two officers then secured Lyons, but he “went limp, pulled his feet

underneath him, refused to walk, and became rigid.” Id. Thus, the sheriffs

had to carry him.

      This Court opined that resisting arrest “does not require serious bodily

injury. Nor does it require actual injury to the arresting officer.” Id. The

panel set forth that sufficient evidence of resisting arrest may exist where

“the arrestee's actions created a substantial risk of bodily injury to the

arresting officer.” Id. The Lyons Court held that Lyons’ “struggle with the

two deputies in the middle of a frigid stream with a rocky uneven bed was

sufficient to meet that requirement.” Id. It added that the resisting arrest

statute “includes the disjunctive phrase ‘or employs means justifying or

requiring   substantial   force   to   overcome   resistance.’   [Lyons’]   actions

unquestionably fall within the ambit of this portion of the statute. It took

four deputy sheriffs to finally subdue appellant. Substantial force was thus

required to overcome appellant's resistance to the arrest.”

      In Commonwealth v. Butler, 512 A.2d 667 (Pa.Super. 1986), the

defendant snatched four gold chains from a woman’s neck in broad daylight



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and knocked her to the ground.       The victim’s friend, who witnessed the

robbery, screamed.    A young man responded to the cry and gave chase.

The victim and her friend then flagged down a police officer.      The young

male who chased Butler returned and informed the officer that the assailant

was hiding behind a wall one block away.       The officer went to that area,

cornered Butler, and instructed him not to move. Butler, however, punched

the officer and attempted to flee. Several other officers had to subdue the

defendant. The Butler Court reasoned that, because “it took the assistance

of other officers to subdue [Butler,]” and the officer testified that he was

punched, the Commonwealth presented sufficient evidence of resisting

arrest.

      In both Lyons and Butler, the defendant exercised more force and

resistance than at issue here.         Assuming that the totality of the

circumstances warranted Appellant’s arrest after the car lurched forward,

Appellant did not create a substantial risk of bodily injury or resist by means

justifying or requiring substantial force to subdue him. Instantly, Appellant

“pulled away” from police by planting his foot “down on the ground to brace

himself from being taken out of the car[,]” and moving his body toward the

passenger seat.   N.T., 11/19/13, at 108, 109.     He attempted to stand up

after being taken to the ground, but was pushed down.           When he was

removed from the car, “he was trying to put his hands in front of him. He



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wasn’t actually complying by putting his hands behind his back.”               N.T.,

11/20/13, at 140.     None of these actions rises to the level of creating a

substantial risk of bodily injury. See Commonwealth v. Eberhardt, 450

A.2d 651 (Pa.Super. 1982). Further, they did not require substantial force

to overcome them.

      We recognize that the resisting arrest statute “does not require the

aggressive use of force such as striking or kicking of the officer.”         Miller,

supra at 146; Commonwealth v. McDonald, 17 A.3d 1282, 1285

(Pa.Super. 2011) (quoting Miller, supra). However, it does mandate that

the forcible resistance used by the defendant involves some substantial

danger to the officer.     Miller, supra at 146.           In this case, there is no

evidence that Appellant punched, struck, kicked, spit upon, shoved, used his

shoulders to strike, fled, or exerted an amount of force justifying or

requiring   substantial   force   to   place    him   in    handcuffs.    Compare

Commonwealth v. Franklin, 69 A.3d 719 (Pa.Super. 2013) (defendant’s

swinging of his fists at police and continually yanking his arms away from

officer constituted violent and tumultuous behavior); McDonald, supra

(resistance by defendant required deployment of taser); Commonwealth v.

Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011) (where officer had

reasonable suspicion to conduct an investigative detention, the defendant’s

actions of struggling with the officer and striking him using his left and right



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shoulders     and   cursing       was     sufficient   evidence    of     resisting   arrest);

Commonwealth v. Thompson, 922 A.2d 926 (Pa.Super. 2007) (couples’

interlocking of arms and legs on the ground to prevent handcuffing required

substantial     force    to     pull     them   apart    leaving        officer   exhausted);

Commonwealth v. Stevenson, 894 A.2d 759, 775 (Pa.Super. 2006)

(defendant pushed officer, violently struggled with the officer, and mule-

kicked him twice); Commonwealth v. Jackson, 907 A.2d 540, 546

(Pa.Super. 2006) (defendant kicked officer during lawful investigative

detention); Lyons, supra (defendant kicked and struggled in freezing cold

creek    with   deputy        sheriffs   requiring     two   sheriffs     to   subdue   him);

Commonwealth v. Guerrisi, 443 A.2d 818 (Pa.Super. 1982) (defendant

struck officer in the groin); Miller, supra at 147 (defendant was “attacking

police[,]” flailed his arms and upper part of his body in a rapid fashion,

“push[ed] through” an officer, strained and struggled against the police and

bruised an officer’s leg).

        Appellant’s pulling away, putting his foot down, attempting to stand,

and moving his hands to the front of his body are the precise types of

actions that were not designed to be encompassed by the resisting arrest

statute. Indeed, Appellant’s trivial acts of resistance are the type of actions

not covered by the statute so as to avoid inviting abusive prosecution. The

Commonwealth failed to prove that Appellant statutorily-resisted arrest.



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      Appellant’s next two issues are that the Commonwealth introduced

insufficient evidence to prove disorderly conduct under 18 Pa.C.S. §

5503(a)(1), charged as a third-degree misdemeanor pursuant to § 5503(b).

The pertinent disorderly conduct charge set forth that, “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 violent or tumultuous behavior.”     18 Pa.C.S. §

5503(a)(1). In addition, because the Commonwealth charged Appellant with

a misdemeanor offense, it also had to show his intent was “to cause

substantial harm or serious inconvenience, or [that] he persist[ed] in

disorderly conduct after reasonable warning or request to desist.”         18

Pa.C.S.A. § 5503(b).       Appellant argues that the evidence did not

demonstrate that he engaged in fighting, threatening, violent, or tumultuous

behavior or had the intent to cause substantial harm to the public by causing

annoyance, alarm, or serious public inconvenience.

      Appellant’s actions of pulling away, putting his foot down, attempting

to stand, and moving his hands in front of his body are not violent actions

that were intended to harm the officers. This Court has also recognized,

      “Tumultuous” is not defined in Section 5503 or elsewhere in the
      Crimes Code. 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.’
      Merriam Webster's Collegiate Dictionary 1272 (10th ed. 1996).
      “Tumult” is relevantly defined as “a disorderly agitation ... of a


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      crowd usu. with uproar and confusion of voices,” or ‘a violent
      outburst.”

Commonwealth v. Love, 896 A.2d 1276, 1285 (Pa.Super. 2006). Again,

Appellant’s actions were not marked by violent or overwhelming turbulence

nor did he agitate a crowd or engage in a violent outburst. Further, there

was insufficient evidence to establish public inconvenience, annoyance, or

alarm.

      The disorderly conduct statute defines “public” as “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(c).    Here, the undisputed testimony of the three police officers was

that no other person was present in the parking lot at the time and that the

incident occurred away from the street at the “far end of the parking lot.”

N.T., 11/19/13, at 72. In sum, the evidence presented at trial established

that the disturbance occurred away from the street and sidewalks as well as

the presence of the public.

      Since no members of the public were present, it is not a reasonable

inference    that   he   intended   to    cause   public     annoyance,   alarm,    or

inconvenience, let alone substantial harm or inconvenience. To the extent

that the Commonwealth argues that he recklessly disregarded a risk of


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creating such a disturbance, it fails to provide legal authority to support the

view that a person creates a substantial and unjustifiable risk of alarm,

annoyance, or inconvenience where the general public is not present. Thus,

the Commonwealth’s evidence was insufficient as a matter of law to meet

the disorderly conduct charge for which Appellant was convicted.

        The final two claims Appellant levels attack the sufficiency of the

evidence as to his harassment conviction. “A person commits the crime of

harassment when, with intent to harass, annoy or alarm another person, the

person communicates to or about such other person any lewd, lascivious,

threatening or obscene words, language, drawings, or caricatures.”          18

Pa.C.S. § 2709(a)(4). Appellant maintains that the language he used was

not lewd, lascivious, threatening, or obscene nor did the Commonwealth

establish that he intended to annoy, harass, or alarm the police.

        The specific language at issue is Appellant’s statement that Officer

DeLozier “was going to take him to prison, strip him, abuse him and rape

him.”    N.T., 11/19/13, at 118.   Black’s Law Dictionary defines “lewd” as

“[o]bscene or indecent; tending to moral impurity or wantonness.” Black’s

Law Dictionary 919 (7th Ed. 1999). Similarly, it defines lascivious as “([o]f

conduct) tending to excite lust; lewd; indecent; obscene.” Id. at 886. The

Commonwealth does not and did not below contend that the statement was

threatening, nor can it be construed as a threat. The definition of “obscene”



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provided by Black’s Law Dictionary is as follows, “[e]xtremely offensive

under contemporary community standards of morality and decency; grossly

repugnant to the generally accepted notions of what is appropriate.”           See

also 18 Pa.C.S. § 5903 (defining obscenity as “‘Obscene.’ Any material or

performance, if: (1) the average person applying contemporary community

standards would find that the subject matter taken as a whole appeals to the

prurient interest; (2) the subject matter depicts or describes in a patently

offensive way, sexual conduct of a type described in this section; and (3) the

subject matter, taken as a whole, lacks serious literary, artistic, political,

educational or scientific value.”).

        The crux of each of the words in the harassment statute are focused

on words intended to evoke sexual desire.           See also Commonwealth v.

Cox, 72 A.3d 719, 722 n.4 (Pa.Super. 2013); Commonwealth v. Fenton,

750 A.2d 863 (Pa.Super. 2003); Brockway v. Shepherd, 942 F.Supp.

1012,     1015   (M.D.Pa.   1996)     (discussing    the    term   “obscene”   and

Pennsylvania’s disorderly conduct statute). Here, it is evident that Appellant

was not intending to evoke sexual desire or lust. Appellant’s odd assertion

to police was not a lewd, lascivious, or obscene statement.           There is no

evidence that Appellant committed harassment.              For the aforementioned

reasons, we reverse each of Appellant’s convictions.




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      Judgment of sentence reversed.       Appellant discharged.   Jurisdiction

relinquished.

      Judge Musmanno joins this memorandum.

      Judge Ott files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




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