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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      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:


____________________________________________


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



____________________________________________


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



____________________________________________


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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