HomeMy WebLinkAboutCP-21-SA-0115-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGES: DISORDERLY CONDUCT (SUM.)
CRIMINAL MISCHIEF (SUM.)
JOANN CATHERINE
EICHELBERGER
CP-2l-SA-0 115-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., March 3, 2006.
In this summary offense case, Defendant has appealed to the Pennsylvania
Superior Court from a judgment of sentence for disorderly conduct and criminal
mischief. 1 The convictions arose from an incident in which Defendant placed her
life in danger by walking in the middle of a road, resisted efforts of various deputy
sheriffs to help her, and kicked out a window of a sheriff s van.
Defendant, who had a substantial criminal record, was sentenced to pay the
costs of prosecution, make restitution for damage to the van, and serve a minimum
period of imprisonment of 48 hours? The bases for her appeal, as expressed in
Defendant's statement of matters complained of on appeal, are as follows:
I. The Court's sentence was excessive, as the period of
incarceration was not in the guidelines, and not the minimum
sentence necessary to effectuate rehabilitation and the interests
of justice in the instance.
II. The Sentencing Court's sentence was rendered without
fair consideration of defendant's size and stature, and the
Court's self perceived inability to understand why defendant
would feel frightened under the circumstances and act as she
did, is particularly unfair where the jurist is a male of stature
and the defendant is a diminutive female.
1 Order of Court, October 25,2005.
2 Order of Court, January 3, 2006.
III. The Commonwealth did not disprove the defenses of
necessity and/or justification where defendant wanted to return
to the hospital where her adult child was undergoing
emergency room care and/or where as a petite female,
defendant reasonably feared for her safety from strange men
who claim to be sheriffs but who had no identification, and
who were the first to encounter her, and as such her actions and
beliefs were reasonably (sic) under the circumstances.
IV. The Court erred in leaving the bench to deliberate with
out (sic) allowing trial counsel the opportunity to raise the
defense of necessity and/or justification or argue the same fully
to the Trial Court, thus the Trial Court failed to entertain any
argument, and due process was denied defendant. 3
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The testimony supporting the prosecution in this case may be summarized
as follows: On Sunday, April 24, 2005, at about 5:00 p.m., Cumberland County
Deputy Sheriff William Kline was driving north on State Route 233 (Doubling
Gap Road) in Lower Mifflin Township, Cumberland County, Pennsylvania, with
another Cumberland County Deputy Sheriff named Ruzanski.4 The deputies were
on their way to a training session, and neither was in uniform. 5
A woman, standing in the middle of their lane, appeared ahead of them. 6
Her position forced Deputy Kline to move into the oncoming lane of traffic. 7 As
they passed her in that lane, the woman yelled for them to stop.8
Deputy Kline brought his vehicle to a stop, and the woman, who turned out
to be Defendant, advised them that she had been thrown out of a car after a fight
3 Defendant's Concise Statement of Matters Complained of on Appeal, filed February 8, 2006.
4 Notes of Testimony 35-36, Trial, October 25,2005 (hereinafter NT _'
5 NT 36.
6 NT 36.
7 NT 36.
8 NT 36.
2
with her husband.9 (As was later to be learned, this story was not true-she had
chosen to get out of the car after being slighted, in her view, by her mother-in-
law. 10)
She told the deputies that she needed a ride to the Carlisle Hospital. 11
Inexplicably, however, she was seeking a northbound ride, whereas the hospital
was to the south. 12
Deputy Kline told her that he was a deputy sheriff and advised her that she
should move off the traveled portion of the road. 13 He also contacted a county
dispatcher because he was concerned that either she or he was going to get hit in
their present location. 14
Defendant refused to get off the roadway and proceeded to walk down the
middle of the road, attempting to bring vehicles going north to a stop. IS As
Deputy Kline tried unsuccessfully to persuade her to get out of the middle of the
road, she succeeded in halting a northbound pickup truck. 16
The driver of this vehicle allowed her to get in and drove her northward a
country block to a residence where he saw two sheriff s vans parked.17 This was
the residence of Harold and Valerie Weary, husband and wife, who also happened
to be Cumberland County Deputy Sheriffs.18 Having followed in their vehicle,
Deputies Kline and Ruzanski also arrived at the residence. 19
9 NT 36.
10 NT 44.
11 NT 37.
12 NT 37-38.
13 NT 37.
14 NT 37.
15 NT 38.
16 NT 38-39.
17 NT 5, 39.
18 NT 4, 18,39.
19 NT 39.
3
The gentleman who had picked Defendant up told Deputy Harold Weary
that the woman had apparently been involved in a domestic dispute, and Deputy
Weary notified the Cumberland County dispatcher of the situation?O However,
the dispatcher advised Deputy Weary that state police were already en route to the
scene of the supposed domestic dispute?1
Defendant told Deputy Weary that she and her husband had been going to a
state park, but that she needed a ride to the Carlisle Hospital because her daughter
was in the emergency room.22 When he asked her why they were going to a state
park if her daughter was in the emergency room, she had no answer.23
Notwithstanding the presence of sheriff s vans at the residence, Defendant
demanded to see proof that Deputy Weary was with the sheriff s office?4 In
response, he went into his house, put his uniform jacket on, and returned with his
sheriff s badge and official photo identification?5 He also corroborated the law
enforcement positions of Deputies Kline and Ruzanski.26
Deputies Kline and Ruzanski advised Deputy Weary that Defendant had
apparently been involved in a domestic dispute, had stepped in front of their car,
and had then gotten into a passing vehicle that drove her to the Weary residence?7
Deputy Weary told Defendant that state police were on their way to the nearby
scene of the purported domestic dispute?8
20 NT 5-6.
21 NT 6.
22 NT 6.
23 NT 6.
24 NT 7.
25 NT 7.
26 NT 7-8.
27 NT 8.
28 NT 7.
4
Deputy Weary then offered to drive her to that location to meet the state
police?9 Defendant responded to this offer with rage and "went ballistic.,,30 She
darted onto the road into the path of an oncoming car. 31 She pointed to the
deputies and yelled to the driver that they were going to shoot her. 32
Although cars were "coming down that road at a pretty good rate of
speed,,,33 Defendant continued to resist all efforts to persuade her to get out of the
road, and it became necessary for the deputies to forcibly remove her from the
road and put her in one of the sheriff s vans pending arrival of the state police.34
She proceeded to kick the window out of the van and climbed through it. 35 She
was then placed in the other van.36
Shortly thereafter, the state police arrived, and Defendant was issued
summary offense citations by Pennsylvania State Trooper Michael Brantonies for
disorderly conduct and criminal mischief. 37 The trooper also acceded to her
request to be driven to the Carlisle hospital, but her adult daughter had already
left. 38
Defendant's testimony at trial was to the effect that she and her husband,
her grandson, and her mother and father-in-law were in a vehicle after dropping
her 23-year-old daughter off at the Carlisle Hospital because she had an
infection.39 Defendant, according to her testimony, took offense when her mother-
29 NT 7.
30 NT 8, 17.
31 NT 17.
32 NT 8.
33 NT 9.
34NT 8-9,16,21-22.
35 NT 9, 22.
36 NT 9.
37 NT 27-30; Citation No. TOI03388-5; Citation No. TOI03389-6.
38 NT 31.
39 NT 43-44.
5
in-law laughed at her, and she told her husband to pull over and let her out, which
he did.40 "There was," she testified, "no altercation other than that[.]"41
She testified that she flagged down the vehicle of Deputies Kline and
Ruzanski, but did not believe that they were deputy sheriffs and declined to move
off the highway because she thought the tan color of her clothing would make her
less visible if she were along the side of the road.42 She did not realize at the time,
according to her testimony, that she was seeking rides from vehicles going in a
direction away from the hospital. 43
Defendant testified that during the entire episode she was "just terrified. ,,44
She conceded that she had broken out the window of the van after kicking it three
times, but claimed that she had not done so "intentionally.,,45 No evidence was
presented of record that Defendant was an unusually small woman, and, unless she
was wearing elevator shoes at the trial, such a description would not be the court's
characterization of her stature.
At the conclusion of the evidentiary phase of the case, the court recessed
for the purpose of considering the evidence.46 Opening statements had not been
requested in this summary offense case by either the Commonwealth or the
defense, nor were closing arguments requested by either side.47 Had they been
requested, they would have been permitted. 48
After considering the evidence, the court found Defendant guilty of one
count of summary disorderly conduct and one count of summary criminal
40 NT 44.
41 NT 44.
42 NT 45-47.
43 NT 47.
44 NT 48.
45 NT 50.
46 NT 56-57.
47 See NT 3, 56.
48 See NT 8, Sentencing Proceeding, January 3,2006.
6
mischief. 49 Because of the unusual and, in the court's view, unprovoked conduct
of Defendant during the incident, the court ordered a presentence investigation
report to determine whether her actions were an aberration in an otherwise law-
abiding life. 50
The presentence investigation report revealed that the 43-year-old
Defendant had on various occasions in the past, received a one- to 23-month
prison sentence for conspiracy to commit burglary, a six- to 23-month prison
sentence for unlawful restraint, a nine- to 23-month prison sentence for unlawful
delivery, manufacture or possession with intent to deliver a Schedule II Controlled
Substance, and a two-day to 23-month prison sentence for driving under the
influence. On January 3,2006, the court imposed the following sentence:
AND NOW, this 3rd day of January, 2006, the Defendant,
Joann Catherine Eichelberger, now appearing in court for
sentence with her privately-retained counsel, Karl E.
Rominger, Esquire, and having previously been found guilty
following a summary trial at Count 1 of Summary Criminal
Mischief and guilty at Counts 2 and 3 of one consolidated
count of Disorderly Conduct, a summary offense, and the
Court being in receipt of a presentence investigation report,
upon which it relies, the sentence of the Court is as follows:
At Count 1, Criminal Mischief, the Defendant is sentenced
to pay the costs of prosecution, and make restitution in the
amount of $29.20 to the County of Cumberland, and to
undergo imprisonment in the Cumberland County Prison for a
period of not less than 48 hours nor more than 90 days.
At Counts 2 and 3, one consolidated count of Disorderly
Conduct, the Defendant is sentenced 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.
The sentences imposed herein shall run concurrently with
each other, and have been imposed because the Defendant has
49 Order of Court, October 25,2005.
50 Order of Court, October 25,2005.
7
a substantial criminal record, and was, in the Court's view,
unprovoked with respect to her conduct in this matter.
The Defendant is notified of her right to appeal to the
Pennsylvania Superior Court from the judgment of sentence
entered herein within 30 days of entry of the judgment of
51
sentence.
Upon her counsel's representation that she would be filing an appeal from
the judgment of sentence, Defendant's continued release, on her own
recognizance, was authorized. 52 The appeal was filed on January 25,2006.
DISCUSSION
Elements of offenses charged Under Section 5503(a)(4) of the Crimes
Code, a person commits summary disorderly conduct when he or she, "with intent
to cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, . . . creates a hazardous or physically offensive condition by any act which
serves no legitimate purpose of the actor." Act of December 6, 1972, P.L. 1482,
91, as amended, 18 Pa. C.S. 95503(a)(4). Under Section 3304(a)(5) of the Crimes
Code, a person commits criminal mischief when he or she "intentionally damages
real or personal property of another [ .]" Act of December 6, 1972, P. L. 1482, 91,
as amended, 18 Pa. C.S. 93304(a)(5).
In the present case, Defendant's conduct in risking her life by walking
down the middle of a road in an effort to stop speeding cars, physically resisting
efforts by deputy sheriffs to bring her to safety, and kicking out the window of a
sheriff s van satisfied the elements of disorderly conduct and malicious mischief.
Her assertion that her conduct in kicking out the window was unintentional, her
claim that she was terrified by people who were obviously trying to help her, and
her portrayal of herself as a victim in the episode, were, in the court's view,
wholly incredible.
51 Order of Court, January 3, 2006.
52 Order of Court, January 3, 2006.
8
Waiver. Failure of trial counsel to object to a procedure during a trial
constitutes a waiver of the issue. Thus, "[a] party may not remain silent and take
[his or her] chances on a verdict, and then if it is adverse complain afterwards of a
matter which, if an error, would have been immediately rectified and made
harmless[.]" Commonwealth v. Robinson, 543 Pa. 190, 198-99, 670 A.2d 616,620
(1995). Having failed to raise the closing argument issue at the appropriate time,
Defendant waived it.
Sentencing. Sentences for summary offenses are not governed by the
sentencing guidelines. 204 Pa. Code 9303.l(a). A sentence which is statutorily
lawful is within the sound discretion of the sentencing court. Commonwealth v.
Hyland, 2005 P A Super 199, ,-r13, 875 A.2d 1175, 1184 (2005). In the present
case, where Defendant's misconduct was entirely unprovoked and unjustifiable,
where her actions endangered not only herself but also law enforcement officers
who were trying to help her and members of the traveling public, where during the
episode she intentionally and violently damaged public property, where her prior
record included serious crimes and significant periods of incarceration, and where
she evidenced no appreciation of the fact that she had done anything wrong, the
court felt that a minimum sentence of 48 hours in prison would be more likely
than a sentence of probation to persuade her that this type of behavior was in fact
unlawful and should not be repeated.
For the foregoing reasons, it is believed that the judgment of sentence from
which Defendant has appealed was properly entered.
BY THE COURT,
1. Wesley Oler, Jr., 1.
9
John Carter, Certified Legal Intern
Office of the District Attorney
Karl E. Rominger, Esq.
Attorney for Defendant
10