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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DISSENTING STATEMENT BY BOWES, J.:                       FILED APRIL 23, 2020

        I respectfully dissent. I cannot concur in the Majority’s conclusion that

Jonathan Thoma did not receive a “reasonable warning” or “request to desist”

pursuant to 18 Pa.C.S. § 5503(b). Accordingly, I would sustain Appellant’s

conviction for disorderly conduct graded as a third-degree misdemeanor. Id.

        I wish to emphasize that our standard of review requires us to view the

evidence in the light most favorable to the Commonwealth.                   See

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

that deferential standard, I believe that the Majority has taken a too-narrow

view of the many warnings issued to Thoma by law enforcement at different

points in the underlying encounter. The Majority’s holding concludes that it

was the totality of Thoma’s actions that established the actus reus of

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*   Retired Senior Judge assigned to the Superior Court.
J-A05035-20



disorderly conduct, i.e., engaging in “fighting or threatening, or in violent or

tumultuous behavior.”      18 Pa.C.S. § 5503(a).        In particular, Thoma’s

attempted flight and physical struggle with law enforcement are significant

parts of that analysis. See Majority Memorandum at 6-7. During the course

of those events: (1) both Troopers Roland and Onder ordered Thoma to cease

fleeing during the initial foot chase; (2) both Troopers Roland and Onder

warned Thoma that he would be tased if he did not comply; and (3) Trooper

Roland requested that Thoma “sit still” and “calm down” after he had been

tased and handcuffed. See Trial Court Opinion, 5/30/19, at 3-4 (citing N.T.,

1/19/19, at 24-26). At each of these junctures, Thoma refused to comply

with the troopers’ warnings and requests, and remained combative.

      The Majority’s analysis ignores the initial interactions, and instead

focuses on the final set of warnings Trooper Roland issued.        See Majority

Memorandum at 7-8.       Examining these warnings in isolation, the Majority

concludes they are insufficient to establish the grading of Thoma’s disorderly

conduct conviction.     Id.   The Majority’s analysis characterizes Trooper

Roland’s commands as “standard,” and holds that they did not sufficiently

warn Thoma that he “would suffer additional consequences or criminal liability

if he did not desist in his behavior.” Majority Memorandum at 8.

      For reference, the at-issue statutory language provides as follows in its

entirety: “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

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request to desist. Otherwise disorderly conduct is a summary offense.” 18

Pa.C.S. § 5503(b) (emphasis added).

       I must disagree with the Majority’s assessment.        My review of the

available facts indicates that, during the initial pursuit of Thoma, the Troopers

verbally requested that Thoma desist in fleeing and warned him that he would

be tased if he refused to comply. See N.T., 1/19/19, at 24. Once Thoma

regained consciousness after being tased, Trooper Roland repeatedly asked

him to cease his combative behavior by remaining “still” and “calm.” Id. at

24-26. Throughout, Thoma ignored these repeated requests and warnings

from law enforcement, and only desisted in his combative behavior several

minutes after being handcuffed and physically restrained. Id. at 24-26. I

would hold that these collective instructions1 from both Troopers Roland and

Onder, coupled with Thoma’s continued combative behavior, were sufficient

to constitute a “reasonable warning or request to desist” under the operative

statute.2 See 18 Pa.C.S. § 5503(b).
____________________________________________


1   The Majority’s holding states that “standard” instructions from law
enforcement may not constitute a “reasonable warning or request to desist”
under § 5503(b). Majority Memorandum at 8. The Majority has cited no
authority in support of this extraordinary conclusion.

2  It is understandable (but telling) that the Majority has not cited any case
law with respect to its discussion of § 5503(b)—there is precious little
precedent discussing the precise contours of what constitutes a “reasonable”
warning in this context. Arguable guidance from our Supreme Court indicates
that even limited warnings from law enforcement can be sufficient, so long as
they are lawful. See, e.g., Commonwealth v. DeLuca, 597 A.2d 1121,
1123 (Pa. 1991) (“Here, the officer made no illegal or unreasonable request



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J-A05035-20



       Therefore, I respectfully dissent.




____________________________________________


of the [defendant]. The [defendant’s] response was the very type of spark
the statute so plainly seeks to extinguish before it becomes a flame.”).

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