J-S23040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY LEONARD :
:
Appellant : No. 1680 WDA 2018
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000215-2018
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JUNE 26, 2019
Appellant, Zachary Leonard, appeals from the judgment of sentence of
six to twenty-four months confinement, which was imposed following his
convictions, after a jury trial on November 6, 2018, of receiving stolen
property, resisting arrest, disorderly conduct, and use/possession of drug
paraphernalia.1 Appellant was sentenced on his conviction for receiving stolen
property, and he received no further penalties for the additional convictions.
After careful consideration, we affirm.
The facts underlying this appeal are as follows:
On November 20, 2017, Captain William Huss of the City of
Connellsville Police Department was called to respond to a
potential theft from a motor vehicle. Captain Huss responded
along with Corporal Hominsky to a business located at 204 East
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118 Pa. C.S. §§ 3925(a), 5104, and 5503(a)(4), and 35 Pa. C.S. § 780-
113(A)(32), respectively. Appellant was also charged with, and found not
guilty of, theft from a motor vehicle, 18 Pa. C.S. § 3934(A).
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* Retired Senior Judge assigned to the Superior Court.
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Crawford Avenue for report of a theft from a vehicle. Captain Huss
spoke with Erica Shroyer who alleged that her purse was stolen
from her vehicle. Captain Huss learned that the purse [had a
camouflage pattern] and contained approximately six hundred
dollars ($600) in cash, as well as credit cards, her driver’s license,
and additional small items. Ms. Shroyer provided information to
the officers indicating that the Appellant was potentially
responsible for the theft. Captain Huss and Corporal Hominsky
proceeded to search the area for Appellant. While performing this
search, the officers received a call from Fayette County 911
reporting that there was a male subject on the rear roof top of a
building located at 409 South Arch Street in Connellsville. This
location is approximately one half mile from 204 East Crawford
Avenue. Captain Huss and Corporal Hominsky proceeded to the
Arch Street address where they observed Appellant on the roof
ledge of the two-story house wrapped in a blanket.
The officers proceeded to enter the residence through the front.
At this time, they also notified the local fire department as well as
Fayette EMS in the event that Appellant either jumped or slipped
off the roof. The officers proceeded to the second floor and began
speaking to Appellant in an attempt to convince him to come off
the roof. After approximately thirty-five (35) minutes, Appellant
did come inside. Once Appellant was safely off the roof, he was
searched, read his Miranda Rights and placed into custody. Upon
the search of Appellant, he was found to have on his person a
spoon containing a white powder substance, a syringe, two
phones, a wallet, a hundred-dollar bill and one two-dollar bill.
Appellant was then transported to the Connellsville Police Station
where he was questioned further. Appellant eventually told the
officers the location of the camouflage purse. The purse was later
found to be in the location described by Appellant.
Trial Court Opinion, filed January 16, 2019, at 2-4 (citations omitted). On
November 21, 2018, Appellant filed this timely direct appeal.2
Appellant presents the following issues for our review:
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2Appellant filed his statement of errors complained of on appeal on December
14, 2018. The trial court entered its opinion on January 16, 2019.
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1. Did the Commonwealth fail to present sufficient evidence
to prove beyond a reasonable doubt that Appellant did not possess
the intent to return the purse and its contents to the rightful
owner?
2. Did the Commonwealth fail to present sufficient evidence
to prove beyond a reasonable doubt that Appellant created a
substantial risk of bodily injury to the police officers involved in
apprehending him?
3. Did the Commonwealth fail to present sufficient evidence to
prove beyond a reasonable doubt that Appellant created a
hazardous or physically offensive condition with the intent to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof?
Appellant’s Brief at 7.
This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed
in the light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact
to find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of evidence claim
must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the defendant’s
guilt is to be resolved by the fact-finder unless the evidence
is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances.
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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016)(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa.Super. 2017) (internal
brackets omitted).
Appellant first contends that the Commonwealth relied solely on a
witness’ conflicting testimony to establish his possession of the purse, and
failed to establish that he was not going to return it to Ms. Shroyer had he
known where she was. We find this argument to be without merit.
“Receiving stolen property is established by proving that the accused
‘intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been stolen,
unless the property is received, retained, or disposed of with intent to restore
it to the owner.’ 18 Pa. C.S. § 3925(a).” Commonwealth v. Galvin, 985 A.2d
783, 792 (Pa. 2009). The evidence to which Appellant refers is that provided
by a friend of his mother, who testified that shortly after the suspected theft
was reported, Appellant entered her home, located approximately six houses
away from the site where Ms. Shroyer’s automobile was parked. N.T.,
November 6, 2018, at 24. She testified that she saw Appellant pulling items,
including an insurance card bearing Ms. Shroyer’s name, from a purse with a
camouflage design. Id. The witness indicated that Appellant pulled cash out
of the purse, which he stuffed into his coat and pant pockets, returned
remaining items to the purse and rushed out carrying the purse. Id. at 24-
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26. In addition, evidence regarding Appellant’s possession of the purse was
also provided via the testimony of Ms. Shroyer, who confronted Appellant
following his arrest; she stated that he admitted to her at that time that he
had taken her purse and later thrown it under the back porch steps of the
home where it was found. Id. at 13-14. Further, the Captain of the
Connellsville Police Department testified that following his arrest, Appellant
himself provided the police with the specific location where the purse could be
found. Id. at 41. Ms. Shroyer followed a police officer to her mother’s friend’s
house and they located the purse underneath the porch of the house; the
purse contained her identification cards and no cash. Id. at 14-15. As the
trial court explained in its opinion, the evidence that Appellant provided the
location of the purse taken from Ms. Shroyer’s automobile, that had contained
substantial cash, together with the evidence Appellant was found with a one
hundred dollar bill and the cash had been removed from the purse, was
sufficient, when considered with the entirety of the circumstances, for a
reasonable jury to have found that Appellant lacked the intent to return the
purse and all of its contents to its lawful owner. Trial Court Opinion at 5. We
find this evidence more than sufficient to establish that Appellant possessed a
purse he knew to belong to Ms. Shroyer, and that he did not intend to return
it and its contents to her.
Appellant next argues that the evidence was insufficient to prove beyond
a reasonable doubt that he committed the offense of resisting arrest.
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Resisting arrest is established when a “person…with the intent of preventing
a public servant from effecting a lawful arrest or discharging any other
duty…creates a substantial risk of bodily injury to the public servant
or anyone else, or employs means justifying or requiring substantial force
to overcome the resistance. 18 Pa. C.S. § 5104 (emphasis supplied);
Commonwealth v. Soto, 202 A.3d 80, 95 (Pa. Super. 2018). Appellant
states, correctly, that no substantial force was required to arrest Appellant;
however, with regard to the first prong of the statute, i.e., whether he created
a substantial risk of bodily injury to the officers, he asserts only that the
Commonwealth failed to establish such risk beyond a reasonable doubt. The
testimony of the Commonwealth witnesses confirms that following receipt of
a dispatch call alerting them that a man was on the roof of a house on South
Arch Street, police arrived at the scene to find Appellant on the roof ledge,
wrapped in a blanket. The police captain testified that the police corporal who
accompanied him was compelled to break the plane of the window that
provided sole access to the roof top area, and that they “were trying to walk
out to get him and he started walking further and further away from us,”
causing them to remain inside for fear that Appellant might jump or fall off
the roof. N.T. at 44. The police captain stated that “clearly, [the police
corporal] could have gotten cut by the glass because he did break the plane
[sic] of that window in attempts to talk him off the ledge.” Id. As the trial
court noted, the possibility of necessitating officers climbing onto a second-
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story roof top to apprehend a suspect was enough evidence for a reasonable
jury to conclude that the officers were substantially at risk of bodily injury,
given the likelihood of severe or even fatal injuries from a fall. We have held
that the circumstances surrounding an arrest may create a substantial risk of
bodily injury sufficient to prove resisting arrest. Commonwealth v. Lyons,
555 A.2d 920, 925 (Pa. Super. 1989) (resisting arrest conviction upheld where
while fleeing arrest, appellant ran into Lycoming Creek and tried to swim
downstream, and deputies had to wade in to waist-deep, frigid water with a
slippery stream bottom and swift current to apprehend him). Here, we find
sufficient evidence proving beyond a reasonable doubt that Appellant created
a substantial risk of bodily injury to the officers who pursued him when he
retreated to a rooftop ledge.
Finally, Appellant contends that the Commonwealth’s evidence was
insufficient for a finding of guilt beyond a reasonable doubt of disorderly
conduct. The Pennsylvania Crimes Code defines disorderly conduct as follows:
§ 5503. Disorderly conduct
(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.
(b) Grading. –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 conduct after
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reasonable warning or request to desist. Otherwise disorderly conduct
is a summary offense.
(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.
18 Pa. C.S. § 5503(a)(4)-(c). Commonwealth v. Fedorek, 946 A.2d 93, 96
(Pa. 2008). We have defined the term ‘hazardous condition’ in subsection
(a)(4) as “a condition that involves danger or risk, particularly of injuries
resulting from public disorders.” Commonwealth v. N.M.C., 172 A.3d 1146,
1150 (Pa. Super. 2017) (citation, quotation marks, and brackets omitted). A
physically offensive condition, within the meaning of § 5503(a)(4)
“encompasses direct assaults on the physical senses of members of the
public.” Commonwealth v. Mauz, 122 A.3d 1039, 1042 (Pa. Super. 2015)
(quoting Commonwealth v. Williams, 574 A.2d 1161, 1164 (Pa. Super.
1990)).
Here, Appellant argues only that he performed no act that could have
created a hazardous or physically offensive condition and that his act, of
merely standing on the roof where he had every right to be, could not be seen
as having created a risk of public inconvenience because he was not in a public
place. (Appellant’s Brief at 11, 17.) We find both arguments to be without
merit. The record evidence established that police officers arrived at the scene
to find Appellant standing atop a second story roof, wrapped in a blanket,
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visible to the public from the street below. They immediately alerted and
summoned both the fire department and EMS to the scene, fearing he might
jump or fall off the roof ledge. Appellant did not merely “walk out onto a roof,”
as he alleged, but rather he actively resisted the police officers’ entreaties to
come off the roof, continually moving backwards, closer to the edge, as they
attempted to approach him, and persisted in this conduct for a period of
approximately thirty-five minutes. As the trial court noted, it was entirely
reasonable that a trier of fact could find that Appellant’s behavior was “unruly”
and resulted in a scene that might “very well be described as tumultuous.”
Trial Court Opinion at 6. See Commonwealth v. Hock, 728 A.2d 943, 946
(Pa. 2008) (“The cardinal feature of the crime of disorderly conduct is public
unruliness which can or does lead to tumult and disorder.”).
We find that Appellant’s actions created a hazardous condition - to
himself, to bystanders below, and to EMS, firemen, and policemen assembled
at the scene. Appellant’s resistance to police attempts to talk him down from
the roof created a condition fraught with danger; moreover, the spectre of a
man falling from a roof would clearly constitute a direct assault on the physical
senses of a witness below. Appellant’s argument that he was not in a public
place, and could not therefore have created a public inconvenience is without
support. We have held that the roof top on which Appellant’s charged conduct
occurred was “public” within the meaning of the disorderly conduct statute.
Commonwealth v. O’Brien, 939 A.2d 912, 914 (Pa. Super. 2007).
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Instantly, we are not confronted with a situation wherein Appellant was on his
own private property. While not on public property, Appellant was standing
on the roof ledge, visible to neighbors and bystanders on the street below as
well as all of the emergency personnel. Applying the statutory definition of
“public” to the circumstances of Appellant’s more than half-hour stand down
with the police and eventual arrest, it is clear that he could legitimately be
charged with recklessly creating a risk of public inconvenience, annoyance or
alarm.
In summary, we conclude that the evidence is sufficient to establish the
offenses of receiving stolen property, resisting arrest, and disorderly conduct.3
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2019
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3We were not asked to consider the sufficiency of the evidence to establish
use/possession of drug paraphernalia.
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