J-S61038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    NICHOLAS JOHN SCOTT,

                             Appellant               No. 3637 EDA 2016


           Appeal from the Judgment of Sentence November 4, 2016
               in the Court of Common Pleas of Lehigh County
              Criminal Division at No.: CP-39-CR-0003888-2016


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 13, 2017

        Appellant, Nicholas John Scott, appeals from the judgment of sentence

imposed on November 4, 2016, following his non-jury conviction of

obstruction of the administration of law or other governmental function. 1 On

appeal, Appellant challenges the sufficiency of the evidence. For the reasons

discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s January 10, 2017 opinion and our independent review of the

certified record.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 5101.
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           On July 1, 2016, Office of Children and Youth Services
     Caseworker Jamie Faucon was the on-call caseworker for the
     evening. Earlier in the day, Ms. Faucon had been alerted to an
     ongoing situation involving three minor children and their mother,
     [S.M.]. Ms. Faucon was made aware that there were concerns
     that the minor children were in imminent danger due to the fact
     that [S.M.] was actively using heroin and the children were
     without proper supervision in their home. Ms. Faucon was told
     that, at times, [S.M.] left the children in the care of the maternal
     grandmother, [C.M.], who was physically disabled.

           Ms. Faucon was aware of the [] family and she had
     previously investigated a referral on May 26, 2016 regarding
     [S.M.’s] use of heroin and a flea/bedbug infestation in the
     residence.

           The Office of Children and Youth Services maintains a policy
     that when a referral is made and minors under the age of [five]
     reside at the residence, the agency must see the children within
     [twenty-four] hours of the referral. At the time of the referral, the
     minor children were [two and one-half] years old, [four] years old,
     and [five] years old.

           At approximately 10:40 p.m. on July 1, 2016, Ms. Faucon
     and Officers [Glenny] Good and [Richard] Seltzer from the
     Allentown Police Department went to 413½ Gordon Street,
     Allentown, Lehigh County, Pennsylvania to check on the []
     children. Ms. Faucon met with officers on the sidewalk, a few
     houses away from the residence. Ms. Faucon related her concerns
     regarding the imminent danger to the children, their care, [S.M.’s]
     heroin use, [C.M.’s] inability to care for the children, and the
     general living conditions in the home.

           The officers and Ms. Faucon proceeded to the door of the []
     residence. They encountered an overwhelming odor of feces and
     urine. The officers knocked on the door of the residence. Because
     of the hot weather, the solid door to the residence was open and
     only the screen door was closed. From a recliner inside the home,
     [C.M.] responded. The officers asked to speak with [S.M.]. [C.M.]
     responded that [S.M.] and the children were not there. Ms.
     Faucon introduced herself to [C.M.] and explained that she was
     from the Office of Children and Youth [Services] and that the
     agency had received some referrals regarding the care and
     condition of the children. Ms. Faucon indicated that she needed

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     to speak with [S.M.] and see the children immediately. [C.M.]
     again indicated that [S.M.] and the children were not at home.
     Ms. Faucon explained that if it were later found that the concerns
     were meritorious and [C.M.] had lied, she could be held
     responsible for the state of the children.

           From their vantage point on the porch, Officer Seltzer noted
     that the residence was very cluttered and dirty, with garbage
     strewn about. He also noted that the odor of feces was stronger
     as they got closer to the residence.

            Soon after, [C.M.] revealed that [S.M.] and the children
     were home and she yelled upstairs for her to respond to the door.
     [S.M.] came to the door, but did not go outside. Ms. Faucon
     explained why she was there and told [S.M.] that she needed to
     check on the children. [S.M.] immediately became agitated and
     angry, cursing at Ms. Faucon and stating that she “was tired of
     this fucking shit.” [S.M.] refused to allow the officers and Ms.
     Faucon to come into the home but eventually agreed to bring the
     children outside so that Ms. Faucon could assess them. When
     asked about the odor of feces emanating from the home, [S.M.]
     explained that [C.M.’s] commode had not been emptied for
     several days.

           When the children were brought outside, Ms. Faucon noted
     that the foul odor of feces became stronger as B.M., the [two and
     one-half] year old male, was brought outside. Ms. Faucon noted
     that the boy’s shorts were falling off of him due to the fact that
     his diaper was so laden. B.M. had multiple scabs, open sores,
     dried blood and dirt under his fingernails, and dark circles under
     his eyes. Ms. Faucon saw K.K., the [four] year old female, on the
     porch as well. Ms. Faucon noted that she too was very dirty, had
     open sores and scabs on her skin, blood caked under her
     fingernails and toenails, and very dark circles under her eyes. Ms.
     Faucon noted that K.K.’s hair was extremely brittle, thin and short.
     From her experience, Ms. Faucon noted this as a typical indication
     of malnutrition. K.K., the [five] year old male, came out of the
     home as well. Ms. Faucon noted that he too had dirt and dried
     blood under his fingernails, open sores, scabs, and dark circles
     under his eyes.

           Ms. Faucon asked [S.M.] why her children were in such a
     state. [S.M.] replied that they had been at the park all day. While
     the officers interacted with [S.M.] to attempt to deescalate her

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     irate and angry demeanor, Ms. Faucon spoke with the older
     children. The children told her that they had not been at the park
     that day, nor had they been bathed. [S.M.] yelled at Ms. Faucon
     to stop speaking to her children.

           Ms. Faucon also asked [S.M.] about her concerns that [she]
     was actively using heroin. Ms. Faucon requested to see [her]
     arms to check for signs of heroin use, but [she] refused to show
     her arms to the caseworker.

          As a result of her interactions with the children and her
     concerns over [S.M.’s] behavior and the state of the residence,
     Ms. Faucon announced that she was going to call the on-call
     supervisor to facilitate removal of the children immediately. Ms.
     Faucon stepped off of the porch onto the sidewalk area to call her
     supervisor.

           As Ms. Faucon stepped away, the officers attempted to calm
     [S.M.], asking her to calm down for the sake of the children and
     to not make the situation any more difficult for them. [S.M.]
     became even more agitated, took the children back into the home,
     and slammed and locked the door. The officers and Ms. Faucon
     determined that it was necessary to take emergency custody of
     the children.    The officers made radio contact with the
     Communications Center and Captain William Reinik arrived on
     scene approximately five minutes later.

           When Captain Reinik arrived, the officers and Ms. Faucon
     related the condition of the children and the concerns of the
     agency. They determined that the children were in imminent
     danger. They discussed how the children would be transported
     from the residence. Ms. Faucon determined that she would
     transport the children in her personal vehicle but would need to
     return to her office to pick up adequate child restraint systems.
     She left 413½ Gordon Street at approximately 11:45 p.m. and
     returned [fifteen] minutes later.

           While Ms. Faucon was travelling to and from her office,
     Captain Reinik and the other officers approached the residence.
     They knocked and Captain Reinik announced himself and stated
     that they were there to take emergency custody of the children.
     After a few minutes, the Appellant came to the door and partially
     opened it,[a] holding it by the edge, half-way closed. Captain
     Reinik told the Appellant that the police were there to take

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       emergency custody of the children and that he needed to step
       aside so that they could do so. He asked the Appellant to produce
       the children. The Appellant refused, telling the officers that they
       needed a search warrant to enter the residence and take the
       children. The officers replied that they did not need a warrant,
       that they were taking emergency custody of the children because
       they were in imminent danger.[2] Still, the Appellant refused to
       move aside and demanded a warrant. The officers told the
       Appellant that if he did not move aside, he would be arrested for
       obstruction of justice. The Appellant refused again. The officers
       then physically moved the Appellant out of the doorway and
       handed him to another officer to be handcuffed, without incident.
       Once out of the way, the officers were able to gain entry into the
       home to remove the children. The children were taken into
       emergency custody.

              [a] During the Appellant’s testimony, he indicated that
              he fully opened the door.

(Trial Court Opinion, 1/10/17, at 2-7).

       The court held a non-jury trial on November 4, 2016, and immediately

following the conclusion of trial found Appellant guilty of obstruction.

Appellant agreed to immediate sentencing and the trial court sentenced him

to a term of incarceration of not less than three nor more than twenty-three

months. The instant, timely appeal followed. On November 29, 2016, the

trial court ordered Appellant to file a concise statement of errors complained

of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b)


____________________________________________


2 We note that, at trial, the court took judicial notice of Pennsylvania Rule of
Juvenile Court Procedure 1202. (See N.T. Trial, 11/04/16, at 63). That rule
provides that, “[a] police officer . . . may take a child into protective custody
pursuant to Rule 1200 [(relating to the commencement of dependency
proceedings)] if there are reasonable grounds to believe that the child is
suffering from illness or injury or is in imminent danger from the surroundings
and the removal is necessary.” Pa.R.J.C.P.No. 1202A(1)(a).

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statement on December 19, 2016. See id. On January 10, 2017, the trial

court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following question for our review.

            A.    Whether the evidence was sufficient to sustain
      [Appellant’s] conviction[] for obstructing administration of law
      when the actions of [Appellant] were legitimate and not intending
      to prevent the police from eventually competing their duties[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).

      On appeal, Appellant challenges the sufficiency of the evidence. (See

id. at 10-16). Our standard of review for sufficiency of the evidence claims is

well settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in
      a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            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. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).      The Crimes Code has defined the offense of

obstructing the administration of law as follows:


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      [a] person commits a misdemeanor of the second degree if he
      intentionally obstructs, impairs or perverts the administration of
      law or other governmental function by force, violence, physical
      interference or obstacle, breach of official duty, or any other
      unlawful act, except that this section does not apply to flight by a
      person charged with crime, refusal to submit to arrest, failure to
      perform a legal duty other than an official duty, or any other
      means of avoiding compliance with law without affirmative
      interference with governmental functions.

18 Pa.C.S.A. § 5101.

      Initially, we note, and Appellant concedes, (see Appellant’s Brief, at 14),

that a defendant may be convicted of this offense even in the absence of

physical contact with the police.   See Commonwealth v. Scarpone, 634

A.2d 1109, 1113 (Pa. 1993). Moreover, this Court has held that, “[section]

5101 includes intentional, albeit unsuccessful attempts to influence, obstruct,

or delay the administration of law.” Commonwealth v. Trolene, 397 A.2d

1200, 1204 (Pa. Super. 1979) (en banc). Nonetheless, Appellant contends

that the evidence was insufficient to sustain his conviction because, “[h]e

acted with a reasonable belief that he had a right to request the police provide

some verification of their purported authority by which they demanded to

enter the residence and remove his girlfriend’s children.” (Appellant’s Brief,

at 10). We disagree.

      In Commonwealth v. Reed, 851 A.2d 958 (Pa. Super. 2004), appeal

denied, 871 A.2d 190 (Pa. 2005), a police officer attempted to enter an

apartment building in response to a tip that a runaway was at the location.

See id. at 960.    The appellant, who resided on a different floor than the


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purported location of the runaway, blocked the officer’s access to the stairs in

the apartment building and questioned the officer about his purpose. See id.

The police officer responded that it was none of the appellant’s business and

told him to “just let me get by and do my job.” Id. (record citation omitted).

After the appellant continued to bar the officer’s entrance and pushed at him,

the officer arrested him and charged him with obstructing administration of

law or other governmental function.       See id.   On appeal, the appellant

challenged the sufficiency of the evidence. See id. at 963. We held that when

a uniformed officer states that he is acting pursuant to police authority, a

citizen must accept that fact as true. See id. Specifically, we held that the

police officer’s statement that the appellant needed to “just let [him] get by

and do [his] job[,]” was sufficient to inform the appellant that the officer was

performing official police duties “and any interference with the officer would

be interference with the administration of law.” Id. at 964.

      In the instant matter, the record reflects that Captain Reinik explained

to Appellant that he was taking custody of the children pursuant to an

emergency order and requested that Appellant produce the children. (See

N.T. Trial, 11/04/16, at 64-66).     When Appellant insisted that the police

produce a warrant, Captain Reinik explained that he was not required to obtain

a warrant in this type of situation. (See id.). Nonetheless, Appellant, despite

being warned that he would be arrested and that a warrant was unnecessary,




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continued to block access to the residence. (See id. at 66). Captain Reinik’s

testimony was confirmed by Officer Seitzer. (See id. at 53-55).

      This evidence constitutes a far more specific explanation than we found

sufficient to put an individual on notice that the police were performing official

duties in Reed. See Reed, supra at 960. Thus, we find that the trial court

did not err in holding that the evidence was sufficient to sustain Appellant’s

conviction. See id.; see also Commonwealth v. Johnson, 100 A.3d 207,

214-16 (Pa. Super. 2014), appeal denied, 112 A.3d 650 (Pa. 2015) (finding

evidence sufficient to sustain conviction of obstructing administration of law

or other governmental function where appellant intentionally delayed opening

door to police who announced they had arrest warrant); Commonwealth v.

Conception, 657 A.2d 1298, 1301 (Pa. Super. 1995) (holding evidence

sufficient to sustain conviction of obstructing administration of law or other

governmental function where appellant physically blocked door of apartment

to prevent police from entering with arrest warrant).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017



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