J-A17031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

HAROLD S. MACAULEY

                            Appellant                    No. 1843 EDA 2014


              Appeal from the Judgment of Sentence June 3, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006025-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED JULY 22, 2015

        Appellant, Harold S. Macauley, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his bench

trial convictions for harassment and disorderly conduct.1 We affirm.

        In its opinion, the trial court set forth the relevant facts of this case as

follows:

           On June 14, 2013, Appellant visited United Furniture
           Warehouse located in Holmes, Pennsylvania to pick up a
           set of bunk beds that his wife had ordered a few months
           prior. Mahmoud Eid, an employee of United Furniture, was
           working that day. When [Appellant] arrived at the store’s
           warehouse, he produced a receipt for the furniture. The
           receipt bore a woman’s name, so Mr. Eid asked [Appellant]
           to sign the receipt and produce his driver’s license so that
           [Mr. Eid] could make a copy for the store’s records.
____________________________________________


1
    18 Pa.C.S.A. §§ 2709(a)(3) and 5503(a)(4), respectively.
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        [Appellant] refused to give his driver’s license to Mr. Eid.
        [Appellant], angered by [Mr. Eid’s] request, began to
        scream at Mr. Eid that [Appellant] “need[ed] his stuff.”

        [Appellant] then went to his car, and returned with his
        driver’s license, which he then provided to Mr. Eid. Mr. Eid
        told [Appellant] that [Mr. Eid] was going to make a copy
        and would return and asked [Appellant] to wait while [Mr.
        Eid] went inside the warehouse. Appellant refused, and
        followed Mr. Eid into the warehouse, actually into the office
        area of the warehouse. Mr. Eid made several requests for
        [Appellant] to leave and warned him that if he didn’t leave,
        [Mr. Eid] would call the police. Appellant continued to
        follow Mr. Eid, and Mr. Eid called the police.

        The two began arguing, and [Appellant] exited the
        warehouse and told Mr. Eid, “you’re going to feel sorry,
        asshole.” Mr. Eid remained in the loading dock area of the
        warehouse with a co-worker, watching [Appellant]. [Mr.
        Eid] observed Appellant retrieve a gun from his car which
        he “slid to get ready for a shot.” Upon observing this, Mr.
        Eid shut the warehouse door and called the police a second
        time. [Appellant] returned to the warehouse and knocked
        on the office door and told Mr. Eid that [Appellant] needed
        his license back. Mr. Eid told [Appellant] that [Mr. Eid]
        would return it after the police arrived.

        [Appellant] testified at trial and admitted that he went to
        his truck and chambered a round in his gun. He said he
        felt threatened by Mr. Eid and maintained that Mr. Eid told
        [Appellant] that [Mr. Eid] would “kick his ass.”

        Thereafter, the police arrived on the scene and took
        statements from all involved. Appellant was placed under
        arrest and charged with terroristic threats, harassment and
        disorderly conduct.

(Trial Court Opinion, filed October 15, 2014, at 1-2). Procedurally, following

a bench trial on June 3, 2014, the court convicted Appellant of harassment

and disorderly conduct. On that same date, the court sentenced Appellant

to a $150.00 fine for each count and ordered Appellant to stay away from

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the warehouse. On July 3, 2014, Appellant filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
         APPELLANT’S SUMMARY CONVICTION FOR HARASSMENT
         WHERE THERE WAS NO EVIDENCE THAT HE ENGAGED IN
         A COURSE OF CONDUCT TO ALARM OR SERIOUSLY ANNOY
         MR. EID WHICH COURSE OF CONDUCT SERVED NO
         LEGITIMATE PURPOSE?

         WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
         APPELLANT’S SUMMARY CONVICTION FOR DISORDERLY
         CONDUCT WHERE THERE WAS NO EVIDENCE THAT HE,
         WITH INTENT TO CAUSE PUBLIC INCONVENIENCE,
         ANNOYANCE, ALARM OR RECKLESSLY CREATING A RISK
         THEREOF, CREATED A HAZARDOUS OR PHYSICALLY
         OFFENSIVE CONDITION BY ANY ACT WHICH SERVED NO
         LEGITIMATE PURPOSE?

         ALTERNATIVELY, WAS APPELLANT’S SENTENCE FOR THE
         HARASSMENT CONVICTION ILLEGAL SINCE IT MERGED
         WITH HIS CONVICTION FOR DISORDERLY CONDUCT?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gregory M.

Mallon, we conclude Appellant’s issues one and two merit no relief. The trial

court opinion comprehensively discusses and properly disposes of those

issues. (See Trial Court Opinion at 3-5) (finding: (1) Appellant followed Mr.

Eid into warehouse and office, despite being told repeatedly not to do so;

Appellant followed Mr. Eid without any legitimate purpose and with intent to


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threaten Mr. Eid; evidence was sufficient to support harassment conviction;

(2) Appellant retrieved and chambered gun in public place, without

legitimate purpose and with intent to cause public inconvenience, annoyance

and alarm; evidence was sufficient to support disorderly conduct conviction).

Accordingly, as to Appellant’s issues one and two, we affirm on the basis of

the trial court opinion.

      In his third issue, Appellant argues the harassment sentence is illegal

because it should have merged with disorderly conduct for sentencing

purposes.    Appellant asserts merger is appropriate because identical facts

supported both convictions and all of the elements of harassment are

included in the elements of disorderly conduct.     Appellant concludes this

Court should vacate his judgment of sentence. We disagree.

      The Pennsylvania Crimes Code defines the crime of harassment in

pertinent part as follows:

           § 2709. Harassment

             (a) Offense defined.—A person commits the crime
             of harassment when, with intent to harass, annoy or
             alarm another, the person:

                                    *     *   *

                (3) engages in a course of conduct or repeatedly
                commits acts which serve no legitimate purpose[.]

18 Pa.C.S.A. § 2709(a)(3). Disorderly conduct is defined in relevant part as

follows:

           § 5503. Disorderly conduct

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            (a) Offense defined.—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:

              (4) creates a hazardous or physically offensive
              condition by any act which serves no legitimate
              purpose of the actor.

                                 *    *    *

            (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.A. § 5503(a)(4) and (c) (emphasis added).

     “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,

70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062

(Pa.Super. 2011)). Whether two offenses merge for sentencing now turns

on Section 9765 of the Sentencing Code, which addresses merger and

provides:

        § 9765. Merger of sentences

        No crimes shall merge for sentencing purposes unless the
        crimes arise from a single criminal act and all of the
        statutory elements of one offense are included in the
        statutory elements of the other offense. Where crimes

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           merge for sentencing purposes, the court may sentence
           the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765 (emphasis added).

       Instantly, a conviction for harassment requires a person to: (1) intend

to harass, annoy or alarm another person; and (2) engage in a course of

conduct or repeatedly commit acts that serve no legitimate purpose. See 18

Pa.C.S.A. § 2709(a)(3). On the other hand, to commit disorderly conduct, a

person must: (1) intend to cause a public inconvenience, annoyance or

alarm, or recklessly create a risk thereof; and (2) create a hazardous or

physically offensive condition by any act which serves no legitimate purpose.

See 18 Pa.C.S.A. § 5503(a)(4).                 The plain language of the respective

statutes    demonstrates      merger     is     inappropriate.   Harassment,   unlike

disorderly conduct, requires actions or conduct directed at another person.

Disorderly conduct, however, requires a person to create a hazardous or

physically offensive condition, an element that harassment lacks. As each

offense requires proof of an element that is absent from the other offense,

Appellant’s convictions do not merge for sentencing.2            See 42 Pa.C.S.A. §

9765. Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

____________________________________________


2
  Appellant’s reliance on Commonwealth v. Whetstine, 496 A.2d 777
(Pa.Super. 1985), is misplaced. Merger law has evolved substantially since
the time that case was decided. Instead, Section 9765 and the “elements”
approach to merger govern Appellant’s issue.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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