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HomeMy WebLinkAbout95-0310 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 95-0310 CRIMINAL TERM : DWAYNE HAROLD HAUS : CHARGES: (A) SIMPLE ASSAULT OTN: E726612-5 : (B) DISORDERLY CONDUCT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 5, 1995. In this criminal case, Defendant has appealed to the Superior Court from a judgment of sentence. The basis for the appeal is that the evidence was insufficient to sustain convictions for simple assault and disorderly conduct.~ This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). DISCUSSION When reviewing a challenge to the sufficiency of the evidence, a court is to determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.2 It is within the province of the factfinder to determine the weight to be given to each witness's testimony and to believe all, ~ Defendant's statement of matters complained of on appeal, filed November 30, 1995. 2 Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). NO. 95-0310 CRIMINAL TERM part or none of the evidence.3 "The resolution of factual matters pertaining to [a defendant's] mental state ... 'is solely within the province of the jury and [a court] will not disturb the jury's findings [on a sufficiency of the evidence claim] when there is support in the record for the verdict.'''4 Defendant was charged with simple assaults and misdemeanor disorderly conduct6 as a result of an incident occurring on Monday, October 24, 1994, at about 7:00 in the evening. Viewed in the light most favorable to the Commonwealth, the evidence admitted at trial, and all reasonable inferences therefrom, may be summarized as follows: At the time of the incident, Defendant, a young adult male, lived in an apartment above a pipe shop,.where he worked, on. South Hanover Street in the Borough of Carlisle in Cumberland County. On this occasion, members of the public had begun to gather on the 3 Id. 4 Commonwealth v. Hassine, 340 Pa. Super. 318, 358, 490 A.2d 438, 459 (1985), quoting Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982), cert. denied, 460 U.S. 1043, 103 S. Ct. 1440, 75 L. Ed. 2d (1983). s Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S. S2701(a)(1), (3). ~ Id., 18 Pa. C.S. §5503(a), (b). 2 NO. 95-0310 CRIMINAL TERM sidewalk in front of the pipe shop in anticipation of the borough's annual Halloween parade on Hanover Street. The victim in this case, Tracy Ann Lear, was in attendance with her husband and young son. Ms. Lear was pregnant, and began to feel faint. She sat down on a stoop next to the pipe shop, which happened to be the entrance by which Defendant accessed his apartment. As she sat holding her son and attempting to overcome her dizziness, a male friend of Defendant entered the building, told her to get off the stoop and swore at her when she did not get up. Shortly thereafter, Defendant descended the stairs from his apartment, got a stick which was in the vestibule area, and sneaked up behind Ms. Lear. He raised the stick and brought it down next to her with such force that a loud bang was emitted, the stick broke and a piece of it flew up and struck Ms. Lear. In addition to being stunned by the noise, Ms. Lear was hurt by the flying piece of wood and suffered a bruise about the size of a half dollar. Defendant proceeded to loudly castigate Ms. Lear, yelling and screaming at her to get the "fuck" off the wall. People of all ages were in the area because of the parade, and the loud noise of the stick and Defendant's profane yelling and screaming were audible to them. Carlisle Borough Police Officer Patrick O'Leary, assigned to 3 NO. 95-0310 CRIMINAL TERM crowd control duty, heard the noise and yelling from a distance. He spoke with Ms. Lear, summoned backup, and eventually located the stick inside the building. He charged Defendant with simple assault and disorderly conduct. Officer O'Leary apparently demurred at Defendant's suggestion that Ms. Lear be arrested for trespass. Although Defendant testified that he never intended to strike Ms. Lear, that he had not been feeling well, that he had been annoyed in the past by people using the stoop as a place to sit, and although the court instructed the jury on the defense of justification in connection with protection of property, the jury returned verdicts of guilty of simple assault and disorderly conduct. Sentence was imposed on October 17, 1995. The sentence on each charge was a twelve-month period of unsupervised probation.7 Defendant filed a notice of appeal on November 16, 1995. The offense of simple assault, for present purposes, is committed if one "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another" or "attempts by ? Order of Court, October 17, 1995. The probationary periods were to be concurrent with each other. Id. 4 NO. 95-0310 CRIMINAL TERM physical menace to put another in fear of imminent serious bodily injury.''8 Bodily injury is an "[i]mpairment of physical condition or substantial pain."9 Serious bodily injury is "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."~° Depending upon the circumstances, it is not a prerequisite to commission of the offense of simple assault that bodily injury be intended by the perpetrator, that bodily injury be actually caused by the perpetrator, or that serious bodily injury be a possible outcome of the perpetrator's conduct. The pointing of an unloaded gun at a victim, for instance, may constitute a simple assault. See Commonwealth v. Gouse, 287 Pa. Super. 120, 429 A.2d 1129 (1981). In this case, Defendant's action in sneaking up behind a young woman seated with her child, and slamming a stick upon the surface next to her with such force as to create a loud report, break the stick and inflict pain and bruising upon her was sufficient, in the court's view, to permit a jury to reasonably infer that he intended to place her in fear of imminent serious bodily injury, or to find 8 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. S2701(a)(1), (3). 9 Id., 18 Pa. C.S. §2301. ~o Id. 5 NO. 95-0310 CRIMINAL TERM that he caused or attempted to cause bodily injury, or both. It is not the prerogative of the court, in reviewing the sufficiency of the evidence, to substitute its own view in these circumstances for that of the jury. The offense of disorderly conduct, for present purposes, is committed if, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [a person] ... engages in fighting or threatening, or in violent or tumultuous behavior[,] makes unreasonable noise[,] uses obscene language, or makes an obscene gesture[,] or creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor[, when the person's intent is to cause substantial harm or serious inconvenience].-~ "Public," in this sense, means "affecting or likely to affect persons in a place to which the public or a substantial group has access.''~2 In the present case, Defendant's violence and loud profanity~ directed at a young mother on the occasion of a Halloween parade along a public street in the presence of persons of all ages was sufficient, in the court's view, to permit a jury to reasonably find that Defendant engaged in tumultuous behavior, made unreasonable noise, and/or used obscene language with intent to cause, or recklessly creating a risk of, public alarm, and to ~ Id., 18 Pa. C.S. S5503(a), (b). ~ Id., 18 Pa. C.S. S5503(c). 6 NO. 95-0310 CRIMINAL TERM reasonably infer that he intended to cause substantial harm or serious inconvenience. Again, in this regard, it is not for the court to substitute its own view for that of the jury. CONCLUSION For these reasons, it is believed that the evidence was sufficient to sustain the convictions for simple assault and disorderly conduct, and that the judgment of sentence was properly imposed. Travis N. Gery, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender