HomeMy WebLinkAboutCP-21-CR-0751-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGE: DISORDERLY CONDUCT
(SUMMARY)
KIMBERL Y LEE TRACEY
OTN: L223730-3
NO. 05-0751 CRIMINAL TERM
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., October 10,2005.
In this criminal case, Defendant Kimberly Lee Tracey was found guilty following
a bench trial of one count of summary disorderly conduct in violation of section 5503(a)
of the Crimes Code. 1 Defendant, whose criminal record included a conviction for
terroristic threats and two convictions for misdemeanor harassments by communication,
was sentenced on August 16, 2005 to pay the costs of prosecution and undergo
imprisonment in the Cumberland County Prison for a period of not less than 48 hours nor
more than 90 days?
Defendant has appealed to the Pennsylvania Superior Court from the judgment of
sentence.3 In her statement of matters complained of on appeal, Defendant expresses the
issue being pursued on appeal as follows:
The Commonwealth failed to prove beyond a reasonable doubt that
Defendant committed disorderly conduct. The Commonwealth failed to
prove any public inconvenience, and failed to prove that the Defendant
used obscene language or an obscene gesture and created a hazardous or
physically offensive condition. While the words of Defendant may have
been disrespectful and insulting, they were not obscene and they were not
acts that created a hazardous or physically offensive condition. 4
1 Order of Ct., Ct. Com. PI. Cumberland County, July 15,2005.
2 Order of Ct., August 16, 2005.
3 Def.'s Notice of Appeal, Sept. 15,2005.
4 Def.'s Concise Statement of Matters Complained of on Appeal, filed Sept. 27, 2005.
This opIlllOn III 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.5 The Commonwealth is
entitled to the benefit of all reasonable inferences deductible from the evidence,6 and the
trier-of-fact is "free to believe all, part or none of the evidence.,,7 Viewed in accordance
with this rule, the evidence in the present case may be summarized as follows:
On Thursday, January 27, 2005, around noon, Patrolman Samuel W. Morgan of
the Lower Allen Township (Cumberland County, Pennsylvania) Police Department, a
veteran of almost twenty years as a law enforcement officer, who was in full uniform,
was engaged in patrolling a shopping center in his jurisdiction known as the Capital City
Mall.8 This shopping center is heavily trafficked. 9
Officer Morgan was in possession of a letter directing a youth named Oscar
Robinson to refrain from entering mall property because of a past incident.10 He
observed Oscar in the food court of the mall, eating lunch with Defendant (his mother)
and another youth. 11 The officer chose not to interrupt their lunch. 12
5 Com. v. Jones, 449 Pa. Super. 58,60-61,672 A.2d 1353, 1354 (1996), quoting Com. v. Carter, 329 Pa. Super. 490,
495-96,478 A.2d 1286, 1288 (1984).
6 Com. v. Gease, 548 Pa. 165, 169,696 A.2d 130, 132 (1997), cert. denied, 522 U.S. 935, 118 S. Ct. 343, 139 L. Ed.
2d 266 (1997).
7 Com. v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979); Com. v. Petaccio, 764 A.2d 582, 585 (Pa. Super. Ct.
2000), quoting Com. v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). See Com. v. Repko, 817 A.2d
549, 553 (Pa.Super. 2003) (noting that the facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence). Any doubts regarding a defendant's guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances.ld.
8 NT at 4-5, Transcript of Proceedings, July 15,2005 (hereinafter NT _).
9 NT at 4. According to Officer Morgan, roughly 50,000 people shop at the Capitol City Mall every day. ld. at 11.
10 NT at 5-6.
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As Defendant and her party left, Officer Morgan, assisted by Officer Curt Heckler
(also of the Lower Allen Township Police Department), called to them,13 whereupon
Defendant instructed her son to keep walking,14 spun around,15 and began screaming at
the officer: "What do you fucking want?" "[T]his is bullshit!" "This is fucking
ridiculous!,,16
When Officer Morgan explained that he needed to present a letter to Oscar,
Defendant interposed herself physically between the officer and Oscar. 17 When Officer
Morgan attempted to get past her, Defendant snatched the letter out of the officer's hand,
glanced at it, crumpled it into a ball, and thrust it into his chest.1S At this point, Officer
Morgan placed Defendant under arrest. 19 Officer Morgan asked Defendant to quiet down
multiple times, but she continued to create a disturbance?O In describing Defendant's
conduct during the incident, Officer Morgan testified that she "flipped out ... [s ]he just
went nuts.,,21
Defendant was initially charged with: 1) summary disorderly conduct under
Section 5503(a)(3) of the Crimes Code;22 2) summary disorderly conduct under Section
11 NT at 6.
12 NT at 7-8.
13 NT at 8-9, 21.
14 NT at 10.
15 NT at 10.
16 NT at 11, 24-25.
17 NT at 10.
18 NT at 10.
19 NT at 10.
20 NT at 12-13.
21 NT at 11.
22 Information, filed May 24, 2005. See 18 Pa. C.S. ~ 5503(a)(3) (proscribing the intentional or reckless use of
obscene language or obscene gesturing).
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503(a)(4) of the Crimes Code;23 and 3) obstructing the administration of law and other
governmental functions under Section 5101 of the Crimes Code, a misdemeanor of the
second degree.24 However, following formal arraignment, the Commonwealth chose to
proceed only on a summary disorderly conduct theory?5
Following a bench trial on July 15, 2005, Defendant was found guilty by the
undersigned judge of one consolidated count of summary disorderly conduct. 26 A pre-
sentence investigation was ordered,27 and on August 16, 2005, she was sentenced as
indicated above.28
Based upon her counsel's representation at sentencing that an appeal would be
filed, Defendant was permitted to remain at liberty?9 Her appeal from the judgment of
sentence was filed on September 15, 2005?0
DISCUSSION
Statement of the Law
Test for sufficiency of evidence. On a challenge to the sufficiency of the evidence
in a criminal case, 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
23 Information, filed May 24,2005. See 18 Pa. C.S. ~ 5503(a)(4) (proscribing the intentional or reckless creation of
a "physically offensive condition by any act which serves no legitimate purpose of the actor," with the intent to
cause public inconvenience, annoyance, or alarm).
24 See 18 Pa. C.S. ~ 5101 (proscribing the intentional obstruction, impairment or perversion of the administration of
law or other governmental function).
25 NT at 3.
26 Order of Ct., July 15, 2005.
271d.
28 See Order of Ct., August 16, 2005 (sentencing Defendant to pay the costs of prosecution and undergo
imprisonment in the Cumberland County Prison for a period of not less than 48 hours nor more than 90 days).
29 Order of Ct., July 15, 2005.
30 Def.'s Notice of Appeal, filed Sept. 15,2005.
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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."31
Elements of offense. Section 5503(a) of the Crimes Code establishes provides as
follows: 32
(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 umeasonable 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.
(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?3
Application of the Law to the Facts
In the present case, where the Defendant, in a heavily trafficked shopping mall at
noon on a business day, physically accosted a police officer attempting to carry out a
public duty, berated him with loud, abusive and vulgar language, physically blocked his
path, grabbed a document which he was attempting to serve and destroyed it, and poked
him in the chest, it is believed that her conduct represented an act that "create[ d] a
31 Com. v. Rucci, 543 Pa. 261,268,670 A.2d 1129, 1132 (1996); Com. v. Jones, 449 Pa. Super. 58, 60-61, 672 A.2d
1353, 1354 (1996); Com. v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Com. v. Barnes, 310
Pa. Super. 480, 482-83, 456 A.2d 1037, 1038 (1983).
32 18 Pa. C.S.A. ~ 5503(a); See 18 Pa. C.S.A. ~ 5503(b) (explaining that a conviction 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 request to desist. Otherwise disorderly conduct is a
summary offense").
33 18 Pa. C.S.A. ~ 5503(c).
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hazardous or physically offensive condition ... which serve [ d] no legitimate purpose of
the actor,,34 and was undertaken "with intent to cause public inconvenience, annoyance or
alarm, or recklessly creat[ed] a risk thereof."35 Accordingly, the court found Defendant
guilty of one count of disorderly conduct.
BY THE COURT,
1. Wesley Oler, Jr., 1.
John C. Dailey, Esquire
Assistant District Attorney
F or the Commonwealth
Ellen K. Barry, Esquire
First Assistant Public Defender
F or the Defendant
34l8pa. C.S.A. ~ 5503(a)(4).
35 18 Pa. C.S.A. ~ 5503(a).
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