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HomeMy WebLinkAbout02-999 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo ROBERT LEHMAN BEAR NO. 02-0999 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., April 1, 2003. IN this summary offense case, Defendant, appearing m propr/a persona, has appealed to the Pennsylvania Superior Court from a judgment of sentence for summary trespass and summary disorderly conduct.2 The charges arose out of an incident in which Defendant, knowing that he was not permitted on the premises, entered the property of Ashcombe's Nursery in Cumberland County, Pennsylvania, and harrangued and bullied its employees and customers.3 This type of activity on the premises, which Defendant had engaged in for at least ten years,4 was intended by him to result in his arrest and trial,s The trial was intended by Defendant to provide a forum wherein he could interrogate the owner of the business over a long-standing religious grievance.6 For the trial, Defendant subpoenaed, among others, the business owner,7 the owner's spouse,a ~ Defendant waived the right to counsel, and refused to request appointment of the public defender to represent him or to act as standby counsel. N.T. 2-3, 6, Waiver of Counsel Proceeding, June 18, 2002. Defendant was permitted to represent himself after an extensive colloquy. Order of Ct., June 18, 2002. : Def.'s Notice of Appeal, filed Feb. 4, 2003. ~ N.T. 5-10, 16-20, Trial, Nov. 14, 2002. 4]d. at 19-21. 5 N.T. 3, Sentencing Proceeding, Jan. 7, 2003. 6 Jcl. N.T. 10-11, Trial, Nov. 14, 2002; Def.'s Ex. 2, Trial, Nov. 14, 2002. 7 See Order of Ct., Nov. 12, 2002. 8 See Order of Ct., Nov. 12, 2002. Defendant's estranged wife,9 a Pennsylvania Supreme Court Justice,l° a retired Cumberland County Court President Judge,il a sitting Cumberland County Court Judge, 12 and the prosecuting attorney,13 none of whom had witnessed the incident. At his sentencing, Defendant conceded the purpose of his offenses as indicated above, 14 and attributed their occurrence to the failure of the state police to arrest him the previous day when he had committed a similar offense at the nursery for the same purpose.15 He was sentenced to concurrent terms of 90 days in prison. 16 However, at the conclusion of the sentencing proceeding, upon solicitation and receipt by the court of Defendant's promise to stop engaging in these offenses, Defendant was immediately paroled without service of the period of incarceration imposed.17 Defendant has now filed an appeal from the judgment of sentence,la The basis for the appeal is expressed in a 17-page, single-spaced document filed by Defendant in response to a court order directing that he file a statement of matters complained of on appeal.19 The document begins with the following sentence: The Cumberland County Court, with its easily proven crimes and lies, joined the Reformed Mennonite cult, with its easily proven crimes and lies, to destroy me as a husband, a 9 See Order of Ct., Nov. 8, 2002. lo See Order of Ct., Nov. 12, 2002. ~ See Order of Ct., Nov. 6, 2002. ~2 See Order of Ct., Nov. 5, 2002. ~ See Order of Ct., Nov. 12, 2002. 14 N.T. 2-3, Sentencing Proceeding, Jan. 7, 2003. ~5 Id. at4. 16 Order of Ct., Jan. 7, 2003. ~7 N.T. 6-7, Sentencing Proceeding, Jan. 7, 2002. ~8 Def.'s Notice of Appeal, Feb. 4, 2003. 19 S~?e Order of Ct., Feb. 7, 2003. 2 father and a meaningful human being, yet both cult and court allow me to exist.2° The document proceeds to discuss the purported injustice of a mental health commitment proceeding in 1977,2~ a prosecution in which Defendant was apparently accused of holding up a school bus with a loaded gun,22 and a Mennonite shunning experience to which he was subjected and which apparently occurred in 1972.23 The tenor of the statement of matters complained of on appeal can be gleaned from an excerpt: How can anyone possibly "repent" by paying the Mennonite price for "the physical union of male and female sexual organs" any more than they can "repent" by paying dollars for "thou hast opened thy feet--his it was"? (Ezekial Chapter 16) In the movie of many years ago, Cat On A Hot Tin Roof, actor Paul Neuman played the role of beautiful young actress Elizabeth Taylor's utterly inadequate husband. Elizabeth Taylor told Neuman, he caused her to "feel like a cat on a hot tin roof". "We hold these truths to be self-evident: that" if all men and women were created equal to Phyllis Christen; all would be taught by "the laws of nature" it is not "fully warranted-- love and concern" for a cult and a court to seduce with their lies, a wife to remain on "a hot tin roof" for more than thirty years. In the absence of a more focused statement of matters complained of on appeal, the court will construe the appeal as a challenge to the sufficiency of the evidence. See Commonwealth v. Blain, 47 Cumberland L.J. 270 (1998). This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). Defendant's statement of matters complained of on appeal, filed Feb. 20, 2003, at 1. :l Id. at 2, 4. ::Id. at4. :~ Id. at5. :4Id. at2. 3 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 (1966) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495096, 478 A.2d 1286, 1288 (1984). Viewed in accordance with this rule, the evidence in the present case may be summarized as follows: Shortly after 9:00 a.m. on Thursday, December 20, 2001,25 Defendant entered upon the premises of Ashcombe's Nursery at 906 Grantham Road, Mechanicsburg [Monroe Township], Cumberland County, Pennsylvania.26 The establishment was owned by one Glenn M. Gross,27 a senior bishop in the Reformed Mennonite Church against whom Defendant had a long-standing religious grievance.~8 Defendant had been aware for over a year that he was not permitted on the premises,~9 as a consequence of other incidents which he had caused over a ten- year period.3° However, as one witness stated, "it doesn't matter to him.''3~ After placing on cars flyers entitled "The Most Wanted Man in the World," which contained photographs of "terrorist leader Senior Bishop Glenn M. Gross" and Osama bin Laden and a text that compared the former to the latter 2s N.T. 5, 15-16, Trial, Nov. 14, 2002. 26 Id.. 27 N.T. 10, Trial, Nov. 14, 2002; Def.'s Ex. 2, Trial, Nov. 14, 28 See Def.'s Ex. 2, Trial, Nov. 14, 2002. 29 N.T. 18, Trial, Nov. 14, 2002. 3°Id. at. 19-21. 3~ Id. atl8. 2002. 4 unfavorably,32 Defendant emered the nursery shop with a bullhorn.33 When he did so, people attempted to flee.34 Defendant, "a very large man,''35 was approached by one of the nursery employees36 and "just exploded, started yelling, just kill me, just kill me.''37 According to a witness, "he was in just running free in the store scaring people.''38 The scene was described as follows: Q Can you describe how loudly he was yelling, reasonable, unreasonable, conversational, or how would you describe it? A ! would think if you were standing close to the door outside you could hear what was going on inside with his voice? Q Why? 39 A He was screaming, going crazy. Q [C]an you describe how the Defendant was acting when the police officer arrived then? A He was very loud, showing anger, yelling at me to kill him.4° Q You said on this particular occasion when the police came he was yelling and screaming, was that unusual than (sic) the prior incidents? 32 N.T. 17, Trial, Nov. 14, 2002; DeE's Ex. 2, Trial, Nov. 14, 33 N.T. 17, Trial, Nov. 14, 2002. 34 Jcl. 35 Id. at7. 36Id. at 17. 37Id. at 17. 38Id. at 17. 39Id. at 17-18. 4°Id. at 19. 2002. 5 A No, that is why we don't want him on the property, the way he acts.4~ After the disruption had continued for five to ten minutes,42 law enforcement arrived in the person of Pennsylvania State Trooper William D. Hotham.43 Trooper Hotham observed Defendant in the shop "yelling and screaming at customers and trying to distribute pamphlets to the customers as they were leaving the store.''44 Defendant's shouting, according to the trooper, "was extremely loud and very unreasonable.''45 Defendant cornered four employees of the nursery who "were a lot smaller than he was.''46 He yelled at them that he wanted the store closed down,47 and that he wanted it closed until the owner arrived.48 Trooper Hotham approached Defendant and "asked him to please stop yelling and calm down.''49 Instead, without lowering his voice, Defendant "turned to [the trooper] and told [him] that he was not going to and for [the trooper] to get him to stop [he] would have to arrest him.''5° Trooper Hotham testified as follows: Q Did you try to get him outside? A ! asked him three times to leave the store, and all three times he told me no. On the third time ! escorted him outside the store. Q When you say he told you no, how loud was he when he was saying no? 41 Id. 4:Id. at 17. 4~ Id. at 5-6. 44Id. at 6. 45 Id. at7. 46 Id. at 6 and 8. 47 Id. at 6-9. 48 Id. at 8-9. 49 x/d. at8. 6 A to leave. He was still yelling and agitated when I asked him Q So he had to be escorted out? A Yes.5~ At the conclusion of the trial, the court found Defendant guilty of summary trespass and summary disorderly conduct.52 Sentence was deferred pending a presentence investigation report.53 The presentence investigation report revealed that Defendant was 73 years old and had a record of criminal convictions dating back to 1987.54 These convictions were for false imprisonment in 1987 (23 months probation), simple assault in 1987 (23 months probation), defiant trespass in 1996 (12 months probation), disorderly conduct and defiant trespass in 1998 (10-90 days imprisonment), and summary trespass in 2002 (45-90 days imprisonment).55 At the sentencing proceeding in this case, Defendant conceded that he had committed the instant offenses for the purpose of being charged so that he could have a forum in which to subpoena Mr. Gross.56 When asked by the court whether these offenses had not occurred one day after a similar offense, Defendant blamed the State Police for the necessity of having to re-commit them: It is because I wasn't arrested the first day. I told the State Police that I wanted to be arrested, they said they couldn't do it. I said, I was going down--what it is, I think Mr. Keating [the prosecutor], yes, he likes to tease me like the court, less my wife, fully warranted love and concern, her naked body lying before me and teasing me, hoping that she would arouse s~ Id. at. 9. s: Order of Ct., Nov. 14, 2002. s~ ]d. s4 Presentence Investigation Report, at 2. ss N.T. 3, Sentencing Proceeding, Jan. 7, 2003. 7 me sexually to repent, and tell Glenn Gross I can't take it, and 57 the Court, oh, that is fully warranted love and concern. Defendant was sentenced to pay the costs of prosecution and to undergo concurrent periods of 90 days in prison for the offenses.58 He was immediately paroled upon his promise to stop committing such offenses,59 a promise which he has kept. DISCUSSION In evaluating the sufficiency of the evidence presented at 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. Petaccio, 764 A.2d 582, 585 (Pa. Super. Ct. 2000) (quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)). With respect to summary trespass, under Section 3503(b) and (b. 1) of the Crimes Code it is provided as follows: (b) Defiant trespasser.-- (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by: (i) actual communication to the actor; or (ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or 57Id. at 4-5. 58 Order of Ct., January 7, 2003. 59 ]d. 8 (iii) fencing or other enclosure manifestly designed to exclude intruders. (2)An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense. (b. 1) Simple trespasser. (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place for the purpose of: (i) threatening or terrorizing the owner or occupant of the premises; (ii) starting or causing to be started any fire upon the premises; or (iii) defacing or damaging the premises. (2) An offense under this subsection constitutes a summary offense. Act of Dec. 6, 1972, P.L. 1482, §1, as amended 18 Pa. C.S. §3503(b), (b. 1). With respect to summary disorderly conduct, Section 5503(a), (b) of the Crimes Code provides as follows: (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. (b) 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 9 conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense. Act of Dec. 6, 1929, P.L. 1482, §1, 18 Pa. C.S. §5502(a), (b). In the present case, it is believed that the evidence supported a conclusion, beyond a reasonable doubt, that Defendant had entered and remained upon the Ashcombe Nursery premises after being told that he was not permitted to do so, that he did so for the purpose of threatening or terrorizing the owner or occupants of the premises, and that in the process he engaged in tumultuous behavior, made unreasonable noise, and created a physically offensive condition which served no legitimate purpose with intent to cause public annoyance, inconvenience or alarm, or recklessly creating a risk thereof. Indeed, it was Defendant's purpose to engage in conduct prohibited by the Crimes Code for the purpose of being arrested. The Commonwealth's evidence having thus satisfied the elements of the offenses of summary trespass and summary disorderly conduct in several forms, it is believed that a challenge to the sufficiency of the evidence is not meritorious and that the judgment of sentence was properly imposed. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Robert L. Bear 201 Potato Road Carlisle, PA 17013 Defendant, Pro Se J. Wesley Oler, Jr., J. 10