HomeMy WebLinkAboutCP-21-CR-1031-2006
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (1) DISORDERLY CONDUCT (SUM.)
: (3) HARASSMENT (SUM.)
BRANDI L. SPENCE :
OTN: L2717853 : CP-21-CR-1031-2006
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 26, 2007.
Following a trial, Defendant was found guilty by this court of disorderly
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conduct and harassment, both summary offenses. She received consecutive
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probationary sentences of 90 days, and fines of $100.00 for the offenses. From
the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania
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Superior Court.
The bases for the appeal have been expressed in Defendant’s statement of
matters complained of on appeal as follows:
1. Evidence was not sufficient to sustain the conviction for Disorderly
Conduct (Summary) in that there was insufficient evidence Defendant,
with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, she:
(1) engaged in fighting or threatening, or in violent or
tumultuous behavior;
(2) made unreasonable noise;
(3) used obscene language, or made an obscene
gesture; or
(4) created a hazardous or physically offensive
condition by any act which serve[d] no legitimate purpose
of the actor.
2. Evidence was not sufficient to sustain the conviction for
Harassment (Summary) in that there was insufficient evidence Defendant
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Order of Court, January 31, 2007. Defendant was found not guilty by a jury of a more serious
offense of defiant trespass in connection with the incident in question. Id.
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Order of Court, March 6, 2007.
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Notice of Appeal, filed March 21, 2007.
struck, shoved, kicked or otherwise subjected another to physical contact,
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or attempted or threatened to do the same without legal justification.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the
evidence is to be viewed “in the light most favorable to the Commonwealth” and
“all reasonable inferences in the Commonwealth’s favor” are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984).
Viewed in this light, the evidence in this case may be summarized as
follows:As a result of an incident occurring around midnight on a weekday in
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December of 2005, Defendant was charged with summary disorderly conduct,
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defiant trespass as a misdemeanor of the third degree, and summary harassment.
On this occasion, Defendant had been barred from entering a bar known as
the Gingerbread Man, located in the Borough of Mechanicsburg, Cumberland
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County, Pennsylvania. Notwithstanding her awareness that she was not permitted
in the establishment, Defendant entered the premises, sat at the bar and ordered a
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beer.
When confronted by the establishment’s bouncer, William R. Raber,
Defendant gave him a false name and claimed that she had no identification papers
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with her. He told her that she had to leave. Her response was to stall and
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Defendant’s Concise Statement of Matters Complained of on Appeal, filed April 4, 2007.
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See N.T. 24, 34, Trial, January 31, 2007 (hereinafter N.T. __).
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See Information, filed May 12, 2006.
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N.T. 12, 22, 31, 37.
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N.T. 24-25.
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N.T. 11.
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N.T. 11.
2
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attempt to negotiate with him. At the time, there were between 20 and 40
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customers in the establishment, and seven in Defendant’s immediate area.
What ensued was described by Mr. Raber as follows:
So I reached over and I put my hand on her shoulder, I said,
Come on, we got to go. We started to walk out the door and I don’t know
if any of you have ever been in there, but as you are going towards the
saloon doors there is round tables on the right-hand side. We got to the
next-to-the-last table and she spun out around me and ran behind the one
round table.
I am like, Brandi, what are you doing? I said, You got to
leave, why are you pulling this. I am not going anywhere. I said, Yes, you
are. Let’s go, now. She goes, No, I am not.
By that time I walked over, I put both hands on her shoulders
and tried to escort her out the door. Got to the saloon doors and she
climbed up the left-hand saloon door. I mean literally grabbed ahold of the
top and pulled herself up. I am like this is just going to be interesting.
Meanwhile, the only bartender that was there was hollering at
me, Bill, get her out the door. So I yanked her off the saloon door, got her
to the first door, pushed her through the first door. Got to the second door
and I used my back, slammed the second door open, turned around and
threw her out to the curb.
When she hit the ground I said, That is it, you are not allowed
in here, stay out, no more. Well, when I turned around to grab the door to
pull it back, I saw something out of the corner o[f] my eye and it was her
and she went with a hook, she came up with a right hook and punched me.
At the same time she came up with her left hand and grabbed ahold of my
beard and we got locked in at that point.
Q The way you have described the Gingerbread Man, there is a
saloon door, there is a little space going to the outside door?
A Yes, there is two saloon doors, there is a little hallway that
does down, there is a pay phone, and then there is the old popcorn machine
there where they had a little serving window from way back when. There
is two main doors, another little hallway, and then the outside two main
doors. They are heavy doors, nor little light doors or anything.
Q While you were in the hallway area before you had taken her
outside, was she doing anything at that point physically?
A She was struggling. She was kicking and carrying on and
stuff. When it got to the last door, because by that time I had twisted up—
I was holding her arms up and around her like this. I lifted her off the
ground and was carrying her out the door.
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N.T. 13.
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N.T. 32.
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When we got to the last door, when I hit my back and I went like to
spin her, she came back with a leg and kicked me right in the you know.
That didn’t make me happy.
Q Just so we are all clear, when she kicked you, where did she
kick you?
A Right in the groin, right there.
Q I am assuming that did not feel good?
A Ah, no.
Q You actually got her outside?
A Yes.
Q I know you said with I believe it was her right hand she
swung at your head?
A Yes, she came up with a right hook and at the same time as
she was swinging up, her left hand came straight up and got ahold of my
beard.
Q Did the right hand make contact with you?
A No, because when I saw it out of the corner of my eye, it was
kind of like coming backwards, and that is when she got the perfect
opportunity to grab ahold of me.
* * * *
Q How did it feel when she had ahold of your beard?
A She literally ripped a chunk right out underneath here, which
bled for about two hours and then scabbed up. It is kind of thin compared
to what it used to be.
* * * *
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I told her time and time again, Brandi, let go, let go. . . .
Two customers from the bar came out and attempted to extricate Mr. Raber
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from Defendant’s grasp, but were not successful. Ultimately, Sergeant Scott
Pellman of the Mechanicsburg Borough Police Department, who happened to be
on routine patrol in the area, heard someone shouting “let go!” and came upon Mr.
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Raber struggling with Defendant, who had grabbed his beard. Sergeant Pellman
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observed the clump of Mr. Raber’s hair Defendant had pulled out.
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N.T. 13-16
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N.T. 29.
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N.T. 34-35.
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N.T. 37.
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Not without difficulty, Sergeant Pellman effected Defendant’s arrest and
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filed the charges referred to above.
DISCUSSION
In an evaluation of the sufficiency of the evidence presented at a criminal
trial, the proper test is “whether, viewing the evidence admitted at trial in the light
most favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to
find every element of the [crime] charged beyond a reasonable doubt.”
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984). The trier of fact is “free to believe all, part or none of the evidence.”
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).
Under Section 5503 of the Crimes Code, a person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he or she:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior; [or]
* * * *
(4) creates a hazardous or physically offensive condition
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by any act which serves no legitimate purpose of the actor.
In the present case, where Defendant entered a drinking establishment
containing between twenty and forty people from which she had been barred,
physically resisted attempts to remove her, climbed up a door, swung at the
establishment’s bouncer, kicked him in the groin, and pulled part of his beard out,
alarming two patrons to such an extent that they attempted to intervene in the
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See N.T. 39.
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It may be noted that Defendant’s version of the events of this night, and of prior incidents
involving herself and the Gingerbread Man, differed in material respects from the versions of Mr.
Raber and Sergeant Pellman. See N.T. 42-58. The court did not find her testimony credible.
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Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §5503(a).
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attack on behalf of the victim, it is believed that the evidence was sufficient to
prove, beyond a reasonable doubt, that Defendant had engaged in fighting, violent
and tumultuous behavior, and had created a physically offensive condition for no
legitimate purpose, under circumstances indicative of either an intent to cause
public alarm or a reckless disregard of the risk thereof. Accordingly, Defendant’s
challenge to the sufficiency of the evidence as it related to the charge of disorderly
conduct would appear to be meritless.
Under Section 2709(a)(1) of the Crimes Code, a person commits the
offense of harassment when, with the intent to harass, annoy or alarm another
person, he or she “strikes, shoves, kicks or otherwise subjects the other person to
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physical contact, or attempts to do the same . . . .” In the present case, where
Defendant swung at the victim, kicked him in the groin and pulled out part of his
beard, under the circumstances recited above, it is believed that the evidence
amply supported a conclusion that, beyond a reasonable doubt, Defendant had,
with the intent at least to annoy the victim, kicked and otherwise subjected him to
physical contact and attempted to subject him to physical contact.
For the foregoing reasons, it is believed that the judgment of sentence from
which Defendant has appealed was properly entered.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
Christin Mertens-Carlin, Esq.
Office of the District Attorney
For the Commonwealth
Timothy L. Clawges, Esq.
Office of the Public Defender
For the Defendant
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Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S.A. §2709(a)(1) (2007 Supp.).
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