Loading...
HomeMy WebLinkAbout98-1078 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : SHANNON O. MCGUIRE 98-1078 CRIMINAL TERM IN RE: DISORDERLY CONDUCT OPINION AND VERDICT Bayley, J,, April 23, 1999:-- Defendant is charged with summary disorderly conduct for violating the Crimes Code at 18 Pa.C.S. Section 5503(a)(4). A hearing was conducted on March 30, 1999. We find the following facts. On May 7, 1998, at 1:54 a.m., Officer Adam Shope of the Shippensburg University Police Department was in a stationary police vehicle on Adams Drive on the campus of Shippensburg University. Officer Shope saw defendant, a male, approximately fifty feet away, urinating on a tree in the area of Montgomery Drive. Defendant was with three other males. Other than those three males and the police officer no other person.saw defendant urinating. Defendant maintains that the Commonwealth has not proved beyond a reasonable doubt that he violated Section 5503(a)(4) of the Crimes Code. The Code at 18 Pa.C.S. Section 5503(a)(4) provides: (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: (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor, (Emphasis added.) 98-1078 CRIMINAL TERM Section 5503(c) defines the word "public" to mean: [a]ffecting 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. (Emphasis added.) In Commonwealth v. Gilbert, 449 Pa. Super. 450 (1996), the Superior Court of Pennsylvania stated that: "The mens rea requirement of the statute [disorderly conduct] demands proof that appellant by his actions intentionally or recklessly created a risk or caused a public inconvenience, annoyance or alarm." In Commonwealth v. Williams, 390 Pa. Super. 493 (1990), a police officer, while on routine patrol in a marked car in the Borough of Donora, Pennsylvania, encountered a car parked with two wheels on the street and.two wheels on the sidewalk. As the officer approached to investigate he saw defendant standing to the side of the illegally parked car, urinating on an adjacent building. The issue raised on appeal was the lawfulness of a search incident to the arrest for disorderly conduct. Without analysis of the mens rea requirement in the statute, the Superior Court of Pennsylvania stated that "Appellant admits that the arresting officer witnessed his urinating in public, conduct which incontrovertibly constitutes disorderly conduct." Where a statement of law is made by an appellate court on a non-controlling issue it is not binding precedent. Commonwealth v. Ayers, 363 Pa. Super. 232 (1987). In the case sub judice, defendant urinated on a tree along a street on a college campus at 1:54 a.m., with his three male friends present. He undoubtedly did not -2- 98-1078 CRIMINAL TERM see the police officer who was in a stationary vehicle nearby. No one else saw defendant urinate. The Commonwealth has not proven beyond a reasonable doubt that defendant intended to cause public annoyance or alarm. Therefore, the issue is whether there is sufficient evidence to prove beyond a reasonable doubt that defendant recklessly created a risk of public annoyance or alarm by creating a physically offensive condition? In People of the State of Illinois v. Duncan, 259 III. App. 3rd 308, 631 N.E.2d 803 (1994), a conviction for disorderly conduct under a statute similar to that in Pennsylvania was upheld when an intoxicated male urinated while facing a woman who was approximately thirty feet away. The Appellate Court of Illinois stated that "We conclude that urination in public, as in the present case, can be done in such an unreasonable manner as to alarm or disturb another .... "We agree with the statement and add that under such circumstances the act would constitute a physically offensive condition. The PennsylVania Crimes Code at 18 Pa.C.S. Section 302(b)(3) sets forth: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the 1. On the facts of this case, defendant's act of urinating was not hazardous. At first blush one might say that defendant could not be found guilty because urinating serves a legitimate purpose of the actor. Urination in a public place, however, does not serve the legitimate purpose of the actor when other places are obviously available to perform that function. -3- 98-1078 CRIMINAL TERM circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. (Emphasis added.) The material element of the offense with respect to which defendant would have had to act recklessly would be causing or creating a risk of public annoyance or alarm by urinating under the circumstances that he did. No one saw defendant other than his friends and the police officer who was surreptitiously nearby. The Commonwealth has not shown that at the time and under the circumstances the act was likely to be seen by anyone other than defendant's three friends and thus annoy or alarm any persons. Accordingly, on these unique facts we are not satisfied that the Commonwealth has proven beyond a reasonable doubt the mens rea necessary to find defendant guilty of disorderly conduct. VERDICT ,Z"~,,~ day of April, 1999, I find defendant NOT GUILTY of AND NOW, this summary disorderly conduct. Jonathan R. Birbeck, Esquire For the Commonwealth William Braught, Esquire For Defendant Edgar ~. B'ayl~'y~ J.~ ;> :saa -4-