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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

ANTHANIA ADENIRAN

Appellant : No. 2463 EDA 2018

Appeal from the Judgment of Sentence Entered July 13, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006375-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 24, 2019

Anthania Adeniran appeals from the judgment of sentence, entered in
the Court of Common Pleas of Delaware County, after she was convicted,
following a non-jury trial, of the summary offenses of simple assault (M2)!
and disorderly conduct (M3).2 After careful review, we affirm in part and
reverse in part.

The trial court aptly summarized the facts of the case as follows:

At about 6:00 a.m. on September 4, 2017[,] Officer [Thomas]
Takacs of the Darby Borough Police Department responded to a
motor vehicle stop that took place about a quarter of a mile from
the Darby Borough police station. [Adeniran] was a passenger in
the vehicle that was stopped. [Adeniran] asked for a ride from
the location of the stop to the police station, a safe place, where
she would call for a ride. As a courtesy[,] Officer Takacs

 

118 Pa.C.S. § 2701(a)(1).

218 Pa.C.S. § 5503(a)(4).
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transported [Adeniran] and the transport was “without incident.”
At the police station, [Adeniran] entered a “vestibule.” The entry
into the police station proper was closed at the time and the door
would remain locked until 8:00 a.m. Members of the public
seeking assistance before 8:00 a.m. access officers in the building
by using a red telephone located next to the front door. Officers
respond[ing] to those calls, meet the individual at the door and
provide them access to the station. [Adeniran] was smoking a
cigarette and she repeatedly tried to enter the police station,
insisting that she needed to charge her cell phone. She was
informed that there was a receptacle located outside the building
and it was available to her for that purpose.

[Adeniran] was under the influence of alcohol. For ten to fifteen
minutes she refused to leave the vestibule[,] although she was
informed that she would not be allowed in the police station to
charge her phone. When [Adeniran] refused to leave[,] she was
arrested for disorderly conduct and public drunkenness.

[Adeniran] was taken into custody. She was handcuffed and
brought into the police station to be processed. About fifteen to
twenty minutes passed. During that period, Officer Takacs, with
the assistance of Officer Desiree Forlini, attempted to get relevant
information from [Adeniran]. [Adeniran] was then advised that
she was going to be housed in a cell to give her an opportunity to
sober up. She was asked several times to remove her shoes and
jewelry as a Safety precaution before entering the cell. [Adeniran]
refused to comply with the officers’ requests and she became
disruptive and combative. She kicked Officer Forlini. With the
assistance of two additional officers[,] Officer Forlini eventually
removed [Adeniran’s] boots. Officer Forlini asked [Adeniran] to
remove her jewelry and explained that it would be held in a secure
police locker. [Adeniran] would not take the jewelry off[,] but she
allowed Officer Forlini to remove her earrings. When Officer Forlini
attempted to remove her watch[, [Adeniran] resisted, telling the
officer that she was “doing it wrong” and she dug her nails into
the officer’s wrists. Officer Forklini [sic] testified that she felt
substantial pain and that she had to back away from [Adeniran].
Officer Forlini did not seek medical attention[,] but testified that
marks were left on her wrist where [Adeniran] dug her nails into
the [o]fficer’s wrist, near her veins. Commonwealth's Exhibit C-2
showed bruising on the area that Officer Forlini described.

As she was moved into a cell[, Adeniran] was completely
uncooperative, swinging the handcuff that was attached to one

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arm at the officers. Evidence of all of the foregoing was viewed
by the Court in Exhibit C-1, a video depicting the processing
procedure and continu[ing] on to show [Adeniran] kicking and
fighting as officers attempted to place her in a cell. She was
disruptive and uncooperative throughout. As she was placed in
the cell[,] her disruptive behavior continued with her throwing a
cup full of soda at the officers. Near its conclusion[,] the video
showed [Adeniran] urinat[ing] on the floor near the toilet in the
cell.

Trial Court Opinion, 11/8/18, at 7-9 (citations omitted).

Following a two-day bench trial, Adeniran was convicted of the two
above-stated summary offenses. The court imposed a $500 fine on each
offense.? Adeniran filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Adeniran raises

the following issues for our consideration:

(1) Whether the evidence presented was sufficient to sustain a
conviction for disorderly conduct as a misdemeanor of the
third degree.

(2) Whether the evidence presented at trial was sufficient to
sustain a conviction for simple assault.

(3) Whether the trial court abused its discretion in denying
[Adeniran’s] post-sentence motion alleging that the guilty
verdicts were against the weight of the evidence.

Appellant’s Brief, at 3.

[T]he critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction . . . does not require a court to
ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, it must
determine simply whether the evidence believed by the fact-finder
was sufficient to support the verdict.

 

3 Adeniran was acquitted of the following charges: aggravated assault,
resisting arrest, institutional vandalism, harassment and public drunkenness.

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Commonweatith v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) (emphasis
in original) (citations and quotation marks omitted). “When reviewing the
sufficiency of the evidence, an appellate court must determine whether the
evidence, and all reasonable inferences deducible from that, viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient to
establish all of the elements of the offense beyond a reasonable doubt.” Id.
at 1237 (citation omitted).

Adeniran first claims that her disorderly conduct conviction is infirm
because “the evidence does not show any intention on [her] part to disrupt
the public order” where she was being “merely sarcastic and argumentative”
and her “conduct was done in furtherance of a legitimate purpose of engaging
the police in a dialogue and not intended to create public tumult.” Id. at 7.

Disorderly conduct is defined in the Crimes Code as:

(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.

18 Pa.C.S. § 5503(a)(4) (emphasis added). “Public” is defined, for purposes

of section 5503, as “affecting or likely to affect persons in a place to which the

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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.” Id. at § 5503(c).

Instantly, Officer Takacs testified that Adeniran arrived at the Darby
Borough Police Department Headquarters at approximately 6:00 on the
morning of September 4, 2017. N.T. Bench Trial, 7/13/18, at 4. At that time,
the headquarters was not open to the public. Id, at 10. Officers Forlini and
Takacs testified that the police station did not open its doors to the public until
8:00 a.m. N.T. Bench Trial, 6/15/18, at 40; N.T. Bench Trial, 7/13/18, at 6.
See also N.T. Bench Trial, 6/15/18, at 10 (“There was no one in the lobby to
watch anybody being in there, so we don’t permit citizens other than police to
be in there.”). Accordingly, when Adeniran arrived at the station she was not
permitted to enter the headquarters, but was required to remain in an outside
vestibule area where there was a red telephone that citizens could use to make
a phone call or file a complaint. Id. at 10 (“I was advised . . . that an individual
that another officer had brought back to obtain a ride in a safe location at
headquarters, outside, had been trying to come inside. That was not
permitted at the time because it was not during business hours.”); N.T. Bench
Trial, 7/13/18, at 5 (She was advised several times that she was not allowed
to enter [the station]. It was not open for the public at that time.”). It was
in that vestibule area that Adeniran “persistently tr[ied] to enter” the station,

telling the officers that she needed to charge her cell phone so she could obtain

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a ride home. N.T. Bench Trial, 7/13/18, at 4. Officer Takacs testified that
after 10 to 15 minutes of Adeniran insisting that she be permitted to enter the
station to charge her phone, he placed her under arrest for public drunkenness
and disorderly conduct. Id. at 7

In Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999), our Supreme
Court explained the purpose and intent of the disorderly conduct statute:

Under the statute, whether a defendant's words or acts rise to the
level of disorderly conduct hinges upon whether they cause or
unjustifiably risk a public disturbance. “The cardinal feature of the
crime of disorderly conduct is public unruliness which can or does
lead to tumult and disorder.” Commonwealth v. Greene, [| 189
A.2d 141, 144 (Pa. 1963).

[T]he 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; it has thus a limited
periphery beyond which the prosecuting authorities have no right
to transgress any more than the alleged criminal has the right to
operate within its clearly outlined circumference.

Id. at 946-47 (emphasis in original) (citation omitted). See
Commonwealth v. Roth, 531 A.2d 1133, 1164 (Pa. Super. 1987) (‘The
dangers and risks against which [section 5503(a)(4) of] the disorderly conduct
statute are directed are the possibility of injuries resulting from public
disorders.”).

There is no documentary evidence in the certified record showing

Adeniran and the Officer Takacs in the vestibule area located outside the main
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door of police headquarters. See N.T. Bench Trial, 7/13/18, at 19 (“There's
no video . . . of your actual arrest of [Adeniran], fair to say. Yes.”). The
videotape, entered as Exhibit C-1 at trial, shows Adeniran alone in a private
room in the police station where officers took her demographic information
and removed her jewelry and boots. The video later shows Adeniran in the
holding cell. Moreover, there is no testimony that any civilians were either
directly outside the station or in the vestibule area when Officer Takacs
arrested Adeniran for the summary offense of disorderly conduct. Finally, it
is undisputed that the station was not open to the public at the time these
events occurred. See 18 Pa.C.S. § 5503(c).

The Commonwealth contends that the evidence was sufficient to prove
disorderly conduct where “the defendant refused to leave the police station,
became combative with police, dug her nails into an officer’s arm, swung and
kicked at police as they placed her in a holding cell, threw a cup of soda at
police, and urinated on the floor in the cell.” Appellee’s Brief, at 7. From the
video footage taken at the station, there is nothing that shows Adeniran
committed her acts in public. See Hock, supra (evidence insufficient to
support disorderly conduct conviction where defendant’s single epithet,
uttered in normal tone of voice while walking away from a police officer, did
not alarm or frighten him, and there were no bystanders). As there is no
evidence to show that Adeniran’s actions occurred in public or in front of
anyone but police officers in private rooms inside the station, we do not find

that the Commonwealth sufficiently established all of the elements of the

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offense beyond a reasonable doubt. Ratsamy, supra. Simply put, there is
no proof that Adeniran intended to cause “public inconvenience, annoyance or
alarm.” 18 Pa.C.S. § 5503(a) (emphasis added). See Commonwealth v.
Fedorek, 946 A.2d 93, 100 (Pa. 2008) (acknowledging “[s]ection 5503 is
aimed at protecting the public from certain enumerated acts”) (emphasis in
original); Commonwealth v. Forrey, 108 A.2d 895 (Pa. Super. 2015) (where
evidence did not support finding that defendant’s loud shouts on public
highway were heard by any passing drivers, judgment of sentence for
disorderly conduct reversed).

Adeniran claims that the evidence was also insufficient to sustain her
simple assault conviction where she did not cause bodily injury and did not
exhibit the requisite mens rea under section 2701. Moreover, she asserts that
Officer Forlini did not sustain “substantial” pain which is required under the
statute, but only suffered “some very minor irritation.” Appellant’s Brief, at
8-9.

A person is guilty of simple assault “if [s]he: (1) attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another|[.]|” 18
Pa.C.S. § 2701(a)(1) (emphasis added). “Bodily injury” is defined as an
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
Under section 2701(a)(1), the Commonwealth need not show that a
complainant suffered an actual injury. Commonwealth v. Brown, 23 A.3d
544, 560 (Pa. Super. 2011) (en banc). Instead, a conviction under section

2701(a)(1) may be established be showing that a defendant had the specific

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intent to cause bodily injury and took a substantial step toward causing bodily
injury. Id.

In Commonwealth v. Kirkwood, 520 A.2d 451 (Pa. Super. 1986)
(plurality decision), our Court found the evidence insufficient to establish
either the “physical impairment” or the “substantial pain” elements necessary
to prove bodily injury for simple assault. In that case, the complainant
sustained “bruises and slight cuts on her arms... and her right knee and
arms hurt as a result of the manner in which [the defendant] swung her during
[a] dance” at a tavern. Id. at 454. Specifically, the Court stated,
“[t]Jemporary aches and pains brought about by strenuous, even violent,
dancing are an inadequate basis for imposing criminal liability upon a dance
partner for assault. [Defendant's] invitation to the dance, even if uncivil and
harassing, was not assaultive within the meaning of the statute.” Id.

In an attempt to further define “bodily injury” under section 2701, our
Court in Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1996),

stated:

The term “bodily injury” is defined at 18 Pa.C.S.A. § 2301 as
“impairment of physical condition or substantial pain.” However
the definition is worded rather generally and does not provide a
great deal of guidance. Furthermore, there [are] surprisingly few
cases that attempt to define the term. Although not necessarily
controlling, the connotation of bodily injury, a sort of common
person understanding of the term, suggests a physical event
unlike those commonly occurring in normal life which, although
unpleasant and somewhat painful, do not seriously interrupt one’s
daily life. Thus, if one cuts oneself shaving the average person
does not think that he has suffered an injury even though such an
event could be accompanied by some pain and _ bloodshed.

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Similarly, if one stubbed a toe or dropped something on it, even
though it could elicit a fair amount of pain and might even result
in some limping and the ultimate loss of a toenail, one would not
think of himself as “injured.” The same could be said if one
bumped an elbow against the wall or one’s head on a low ceiling
beam.

Id. at 210-11. See also Interest of J.L., 475 A.2d 156, 157 (Pa. Super.
1984) (Court reversed adjudication of delinquency of sixteen-year-old for
simple assault where she elbowed nephew to push him away; “it is difficult to
attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling,
perhaps even punching and kicking, that frequently occur between siblings or
other members of the same family.”).

Instantly, the trial court opines that “the . . . facts proved beyond a
reasonable doubt that Officer Forlini suffered significant pain and that
[Adeniran ] intended to cause her bodily injury.” Trial Court Opinion, 11/8/18,
at 10.4 Certainly, the Commonwealth did not have to show that Officer Forlini
sought medical treatment or missed work as a prerequisite for a section 2701
conviction. See In the Interest of M.H., 758 A.2d 1249 (Pa. Super. 2000);
see also Commonwealth v. Richardson, 636 A.2d 1195 (Pa. Super. 1994).
Nor did the prosecution have to prove that Officer Forlini actually suffered
serious injury. Viewing all the evidence and all reasonable inferences in the

light most favorable to the Commonwealth as the verdict winner, we conclude

 

* To clarify, Officer Forlini, in fact, never testified that she was in substantial
pain from Adeniran’s actions. Rather, the officer testified that she was “in
pain” after Adeniran dug her fingers into her wrist. N.T. Non-Jury Trial,
6/15/18, at 18, 31.

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that there was sufficient evidence for the judge, as fact finder, to conclude
that Adeniran committed the offense of simple assault. Considering the
testimony of Officers Forlini and Takacs and the detailed videotape footage of
Adeniran in the processing room and holding cell, the evidence proves that
Adeniran’s actions amounted to more than a “temporary hurt” resulting from
“trivial contact.” Kirkwood, supra. Rather, Adeniran’s actions showed her
intent to cause bodily injury upon the officer as she kicked and thrashed
(causing her to have to be restrained by two male officers) when Officer Forlini
attempted to remove her watch and boots. See Commonwealth v. Moore,
395 A.2d 1328 (Pa. Super. 1978) (well-established that trier of fact may infer
criminal intent from circumstantial evidence).

In her final issue on appeal, Adeniran claims that the verdicts were
against the weight of the evidence. Having determined that Adeniran’s
disorderly conduct conviction must be reversed, we need not address the
weight claim as it pertains to that crime. With regard to whether Adeniran’s
simple assault conviction was against the weight of the evidence, we note

that:

An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:

Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.
[Commonwealth v. |Brown, 648 A.2d [1177,] 1189 [(Pa.
1994)]. Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons

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advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. Commonwealth v. Farquharson, [| 354 A.2d
545 ([{[Pa.] 1976). One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight
of the evidence and that a new trial should be granted in the
interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). In rejecting
Adeniran’s weight claim, the trial judge found that Adeniran “intended to injure
Officer Forlini [and h]jer actions were in accord with her intent.” Trial Court
Opinion, 11/08/18, at 11. The trial court credited the police officers’
testimony, as well as the videotape evidence, which proved Adeniran’s intent
to cause bodily injury. We find no abuse of discretion in the trial court’s
determination.

Judgment of sentence for simple assault affirmed. Disorderly conduct
conviction reversed and judgment of sentence for disorderly conduct vacated.

Jurisdiction relinquished.

Judgment Entered.

 

Joseph D. Seletyn, Ese
Prothonotary

Date: 6/24/19

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