J-A05035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    JONATHAN E. THOMA                            :
                                                 :
                       Appellant                 :   No. 1005 WDA 2019

        Appeal from the Judgment of Sentence Entered February 21, 2019
       In the Court of Common Pleas of Indiana County Criminal Division at
                         No(s): CP-32-CR-0000993-2018


BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED APRIL 23, 2020

        Jonathan E. Thoma (Thoma) appeals from the judgment of sentence

imposed by the Court of Common Pleas of Indiana County (trial court) after a

jury    convicted    him of disorderly         conduct   graded as a   third-degree

misdemeanor.1 On appeal, he raises a sufficiency challenge to his conviction.

After review, we find there was sufficient evidence to convict for disorderly

conduct but not as a third-degree misdemeanor.



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*   Retired Senior Judge assigned to the Superior Court.

1 Thoma mistakenly indicates that he is appealing the denial of his post-
sentence motion. When timely post-sentence motions are filed, an appeal
properly lies from the judgment of sentence made final by the denial of those
post-sentence motions. See Commonwealth v. Kuykendall, 2 A.3d 559,
560 (Pa. Super. 2010).
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      On August 13, 2018, around 9:25 p.m., Pennsylvania State Police

Troopers Roland and Onder were on patrol when they received a report of an

intoxicated driver in a Jeep Cherokee at a nearby Sheetz. Upon arriving there,

Trooper Roland spotted Thoma pumping gas into a Jeep Cherokee. Trooper

Roland then pulled his cruiser in front of the Jeep and stared at Thoma.

Startled by the trooper’s sudden appearance, Thoma turned away and walked

toward Sheetz, leaving the gas nozzle in the Jeep. As Thoma walked to the

store, Trooper Roland got out of his cruiser and yelled for him to stop. Thoma

complied and walked back to Trooper Roland.

      Trooper Roland told Thoma he was there for a reported intoxicated

driver and asked him if he had identification. Because he had a bench warrant

for his arrest, Thoma gave Trooper Roland the name of his brother, Jason

Thoma. But when a search revealed that his brother lived in Florida, Trooper

Roland told Thoma that he would need to be fingerprinted in order to confirm

his identity. Upon hearing this, Thoma became upset and argued with the

troopers but Trooper Roland replied there was no other way to confirm his

identity.

      Realizing that the troopers would find out about his bench warrant,

Thoma turned from Trooper Roland and began running away through the

parking lot. The troopers immediately gave chase and warned Thoma that

they would deploy their tasers if he did not stop. When he would not stop,

Trooper Roland deployed his taser but missed. Trooper Onder then fired his


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and hit Thoma in the back.           Thoma fell and hit his head on the ground,

knocking him out momentarily. When he came to, he pulled his arms and

kicked out his legs in an effort to push himself up off the ground. Trooper

Roland told him to calm down but Thoma continued to struggle for several

minutes, requiring the troopers to hold him down so he could not get up. He

eventually stopped and was taken for medical treatment for his head.

        Thoma was charged by criminal information with false identification, 18

Pa.C.S. § 4914(A), and disorderly conduct under 18 Pa.C.S. § 5503(a)(1),

charged as a third-degree misdemeanor pursuant to § 5503(b). For disorderly

conduct, the Commonwealth alleged that Thoma “was physically combative

with Pennsylvania State Troopers as they were attempting to take him into

custody.” Thoma eventually proceeded to a jury trial where he was acquitted

of false identification but convicted of disorderly conduct graded as a third-

degree misdemeanor.          Waiving his right to a pre-sentence investigation,

Thoma was sentenced to 12 months’ probation that same day. He then filed

a post-sentence motion alleging there was insufficient evidence to convict him

of either disorderly conduct or the enhanced grading. After that motion was

denied, Thoma filed this appeal to challenge the sufficiency of the evidence

for disorderly conduct.2


____________________________________________


2   We apply the following standard of review for a sufficiency challenge:




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       Thoma was convicted under Subsection 5503(a)(1) of the disorderly

conduct statute, which reads in pertinent part 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:

            (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.
____________________________________________


       A challenge to the sufficiency of the evidence is a question of law,
       subject to plenary review. When reviewing a sufficiency of the
       evidence claim, the appellate court must review all of the evidence
       and all reasonable inferences drawn therefrom in the light most
       favorable to the Commonwealth, as the verdict winner. Evidence
       will be deemed to support the verdict when it establishes each
       element of the crime charged and the commission thereof by the
       accused, beyond a reasonable doubt. The Commonwealth need
       not preclude every possibility of innocence or establish the
       defendant’s guilt to a mathematical certainty. Finally, the trier of
       fact while passing upon the credibility of witnesses and the weight
       of the evidence produced, is free to believe all, part or none of the
       evidence.

Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation
omitted).




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       (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. § 5503.3

       In its Pa.R.A.P. 1925 opinion, the trial court found that there was

sufficient evidence to convict Thoma of disorderly conduct:

       [T]he entire incident took place in the parking lot of an operating
       Sheetz store; this obviously constitutes a public place within the
       meaning of the Disorderly Conduct statute. Next, it is clear that
       [Thoma] engaged “in fighting or threatening, or in violent or
       tumultuous behavior.” [Thoma’s] intentional, culpable conduct
       consisted of running from uniformed police officers, ignoring
       commands to stop given by the police officers, running through
       the first taser hit (thereby requiring the firing of a second taser),
       and pulling his arms away and kicking his legs in an attempt to
       push up despite the physical efforts and verbal commands of the
       police officers. Given the nature and extent of [Thoma’s] actions,
       [Thoma], at the very least, recklessly created a risk of causing
       public inconvenience, annoyance, or alarm.

Trial Court Opinion, 5/30/19, at 6.

       Thoma concedes that he was combative with the troopers but disputes

that the Commonwealth presented sufficient evidence to establish that he


____________________________________________


3  The offense of disorderly conduct is intended to protect the public.
Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (“Certainly,
Section 5503 is aimed at protecting the public from certain enumerated
acts.”). “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.”       Commonwealth v. Hock, 728 A.2d 943, 947 (1999)
(quotation omitted).

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intended to or recklessly created the risk of a “public inconvenience,

annoyance or alarm.” “The mens rea requirement of Section 5503 demands

proof that appellant by [his] actions intentionally or recklessly created a risk

[of causing] or caused a public inconvenience, annoyance or alarm.”

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)

(quotation omitted).      The specific intent requirement “may be met by a

showing of a reckless disregard of the risk of public inconvenience, annoyance,

or alarm, even if the appellant’s intent was to send a message to a certain

individual, rather than to cause public inconvenience, annoyance, or alarm.”

Id. (citation omitted).

      There was sufficient evidence that Thoma committed the actus reus of

the offense by engaging in “fighting or threatening, or in violent or tumultuous

behavior.” Moreover, because it took place in the Sheetz parking lot, Thoma’s

conduct related to the public because it was “affecting or likely to affect

persons in a place to which the public or a substantial group has access.” 18

Pa.C.S. § 5503(c).        As to whether he had the intent to cause a public

inconvenience, Thoma speculates that he could not have formed an intent

when he was combative with police officers because he had just regained

conscious from being tasered and was confused.        However, this argument

ignores the events leading up his takedown.      When asked for his identity,

Thoma gave the troopers his brother’s name, presumably in the hopes that

he would not be taken into custody on a bench warrant; but when he was told


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that he would be taken to be fingerprinted, Thoma became upset and

eventually ran away from the troopers so that he would not be taken into

custody. Even after he was subdued and handcuffed, Thoma struggled with

the troopers for several minutes until he complied and stopped trying to get

up. See N.T., 2/19/19, at 26. Additionally, all of this occurred in a public

place—a Sheetz parking lot—at a time when, according to Trooper Roland,

there were vehicles parked and people at the store.

      Overall, viewing this evidence in a light most favorable to the

Commonwealth, Thoma’s conduct is sufficient to make out summary

disorderly conduct because he engaged in defined conduct “with intent to

cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof.” Members of the public that viewed this conduct were reasonably

inferred to have been annoyed or alarmed by this conduct to make out

summary disorderly conduct.

      While the evidence is sufficient to establish summary disorderly conduct,

the issue then is whether the conduct was sufficient to make misdemeanor

disorderly   conduct.    As   charged   in   the   criminal   information,   the

Commonwealth was required to show that Thoma persisted in his disorderly

conduct “after reasonable warning or request to desist.”            18 Pa.C.S.

§ 5503(b).    To establish the enhanced grading, the Commonwealth asked

Trooper Roland if he said anything to Thoma once he regained consciousness.

Trooper Roland replied as follows:


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      I gave him commands to sit still. At that point he was pulling his
      arms away and kicking his legs and trying to push up. I told him
      that he was under arrest and to calm down.

N.T., 2/19/19, at 25.

      This answer, which constitutes the sum of evidence the Commonwealth

presented to establish the enhanced grading, is not enough to raise disorderly

conduct from a summary to a misdemeanor. Trooper Roland testified that

Thoma was already under arrest and placed in handcuffs when he regained

consciousness. Once Thoma began to try and push himself up, Trooper Roland

simply told him to “sit still” and “calm down.” This is not enough. These

comments were standard commands made any time someone is arrested and

exhibits resistance.     They were not, as we read Section 5503(b) to

contemplate, warnings to Thoma that he would suffer additional consequences

or criminal liability if he did not desist in his behavior. Accordingly, we reverse

Thoma’s conviction on misdemeanor disorderly conduct and remand for

sentencing on summary disorderly conduct.

      Jurisdiction relinquished.

      President Judge Emeritus Bender joins the memorandum.

      Judge Bowes files a dissenting statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2020




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