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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH MARK SILFIES :
:
Appellant : No. 1783 MDA 2019
Appeal from the Judgment of Sentence Entered September 26, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002076-2019
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2020
Keith Mark Silfies appeals from the judgment of sentence of time served
(153 days) to one year of imprisonment, followed by one year of probation,
imposed after he was convicted of one count of disorderly conduct and four
counts of harassment. We affirm.
The trial court’s summary of the underlying facts, which is supported by
the record, is as follows:
In this case, [Appellant] admitted himself to the Reading Hospital
emergency department for treatment of his right wrist. While in
the emergency department, [Appellant] indicated to his
healthcare providers that he was not feeling well mentally, and he
asked to speak with a psychiatrist on the condition that he not be
sent “anywhere that I’m not going to be allowed to walk out.” He
was assured that he would not.
Before he was discharged, [Appellant] decided that he
wanted to exit the building. [Appellant] became agitated when he
was prevented from leaving through the door he wished to exit.
His conduct drew the attention of hospital security, leading to an
unfortunate exchange during which the hospital guard[,
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Christopher Shirey,] escalated the situation and participated in a
verbal back-and-forth with [Appellant]. [Appellant] eventually
made his way to a hallway where he could safely exit the building
with the guidance of other hospital staff members. Unbelievably,
as [Appellant] was exiting, [Shirey] felt compelled to follow
[Appellant] into the hallway and watch as [Appellant] left. This
enraged [Appellant], who was admittedly having a psychiatric
episode and actively seeking help.
In response to [Shirey]’s conduct, [Appellant] became
further aggravated and tried swatting away those members of the
hospital staff who were escorting him out of the building. [Shirey]
stood safely further down the hall then slipped back through a
locked door.
As a result of the verbal exchange between [Appellant] and
[Shirey], the Commonwealth charged [Appellant] with one count
of terroristic threats. He was found not guilty. Based upon
[Appellant]’s attempts to free himself from his escort while being
led out of the building, the Commonwealth charged [Appellant]
with six counts of harassment. Each count involved verbally
communicating threatening words to an individual member of
hospital staff.[1] He was found guilty of four of the six counts.
Finally, the Commonwealth charged [Appellant] with a single
count of disorderly conduct for engaging in fighting, threatening
behavior, or in violent or tumultuous behavior while he was an
admitted patient at the hospital. He was found guilty of disorderly
conduct.
Trial Court Opinion, 2/7/20, at 1-3 (citations omitted).
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1 Shirey testified that Appellant directed homophobic slurs at him and
informed him that “he was going to wait for me after work, and then his next
comment was about finding my wife; beating the shit out of me and then
fucking my wife afterwards.” N.T. Trial, 8/28/19, at 19-20, 28. Security
guards Mark Rippert and Mathias Rodriguez testified that, as they and other
security personnel, including Carolyn Johnson, attempted to get Appellant to
disengage from his altercation with Shirey and leave the building, Appellant
threatened all of them, doing karate moves and telling each of them
individually that he was “going to kick your ass.” Id. at 44. See also id. at
39.
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Appellant was sentenced as indicated above on September 26, 2019.
Appellant filed a timely notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925. Appellant presents two questions for our
consideration: (1) “Whether the evidence was sufficient to establish all
elements of disorderly conduct?” and (2) “Whether the evidence was sufficient
to establish all elements of harassment?”2 Appellant’s brief at 13
(unnecessary capitalization omitted).
We begin with a review of the applicable legal principles.
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note 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. The Commonwealth
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2 The trial court opined that it had no Pa.R.A.P. 1925(a) obligation to address
Appellant’s issues because the sufficiency challenges raised in his statement
of errors complained of on appeal “did not involve a claim of error[.]” Trial
Court Opinion, 2/7/20, at 4. That construction does not further the purpose
of Rule 1925, which is to assist this Court in conducting meaningful appellate
review. See Commonwealth v. McBride, 957 A.2d 752, 758 (Pa.Super.
2008). More importantly, regardless of whether they qualify as “error,”
Appellant would have waived his issues for appeal had he not raised them in
his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii).
The trial court opted to refer this Court to the portion of the trial transcript
which recorded the trial court’s reasoning for denying Appellant’s motion for
judgment of acquittal. See Trial Court Opinion, 2/7/20, at 4 (citing N.T. Trial,
8/28/19, at 48-55). However, little found therein assists our review.
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may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa.Super. 2019) (internal
quotation marks omitted).
Appellant first argues that the evidence was insufficient to support his
conviction for disorderly conduct. Appellant was convicted under the
subsection of the statute that provides as follows: “A person is guilty of
disorderly conduct if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he . . . engages in fighting or
threatening, or in violent or tumultuous behavior.” 18 Pa.C.S. § 5503(a)(1).
Appellant does not dispute that the Commonwealth proved the actus
reus element of the crime, i.e., that he engaged in threatening and violent
behavior. Rather, he contends that the evidence does not establish the mens
rea element: that he intended to cause, or recklessly created a risk of causing,
public inconvenience, annoyance, or alarm. Appellant maintains that his only
intent was to go home. See Appellant’s brief at 26. He further asserts that
he could not have intended to cause public inconvenience or risk thereof
because the unit of the hospital in which the incidents took place was restricted
and not open to a substantial group of the public. Id. at 27.
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We find no merit in Appellant’s arguments. First, Appellant’s contention
that the restricted-access psychiatric unit of the hospital was not a “public”
area within the meaning of the disorderly conduct statute is unavailing. The
statute defines “public” as “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(c).
The testimony at trial established that there were other patients, nurses,
and hospital personnel present in the psychiatric emergency services unit at
the time of Appellant’s initial outburst of banging on doors, setting off an
alarm, pacing back and forth while being loud and aggressive. See N.T. Trial,
8/28/19, at 13-15. Moreover, as the Commonwealth notes, Appellant’s
threatening and tumultuous behavior extended out of the restricted unit as
the additional security guards attempted to escort Appellant out of the
hospital. See Commonwealth’s brief at 12 (citing N.T. Trial, 8/28/19, at 13-
16, 35-36, 59). Based upon the evidence offered by the Commonwealth, the
areas at issue were no less open to the public than prisons, which are
expressly included as public place in the disorderly conduct statute.
Second, the fact that Appellant just wanted to leave does not foreclose
finding the specific intent element of the statute. As this Court has explained,
that element “may be met by a showing of a reckless disregard of the risk of
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public inconvenience, annoyance, or alarm, even if the appellant's intent was
to send a message to a certain individual, rather than to cause public
inconvenience, annoyance, or alarm.” Commonwealth v. Troy, 832 A.2d
1089, 1094 (Pa.Super. 2003). Hence, the fact that his tumultuous behavior
was directed at Shirey in an effort to get him to allow Appellant to leave does
not render the evidence insufficient, where he recklessly created a risk of
alarming the members of the public present in the restricted unit.
Moreover, even if Appellant’s initial outburst was solely motivated by a
desire to leave the hospital and fell below the threshold for reckless disregard,
that intent cannot reasonably explain his actions outside of the unit. When
security personnel other than Shirey had Appellant in the hallway outside of
the restricted unit, Appellant actively resisted leaving in order to continue
making threats to Shirey and the other hospital personnel. See N.T. Trial,
8/28/19 at 37-39 (explaining that while five guards attempted to escort
Appellant out of the hospital, he resisted leaving and attempted to go back
after Shirey and threatened all six of the guards). Accordingly, Appellant’s
arguments concerning disorderly conduct present no basis for this Court to
disturb that conviction. Accord Commonwealth v. Rahman, 75 A.3d 497,
503 (Pa.Super. 2013) (holding intent to cause inconvenience established by
evidence that the defendant ignored warnings to cease loud and boisterous
behavior at a city council meeting and escalated his physical aggression as
officers attempted to escort him out of the meeting).
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Appellant next claims that the evidence was insufficient to sustain his
harassment convictions. He was convicted of four counts of harassment: one
each for victims Shirey, Carolyn Johnson, Mark Rippert, and Mathias
Rodriguez. As indicated above, as the officers attempted to get Appellant to
leave the hospital rather than stay to confront Shirey, Appellant informed each
of them that he was going to “kick your ass.” See, e.g., N.T. Trial, 8/28/19,
at 44. Appellant himself testified that he told Shirey, “I’m going to fuck you
up.” Id. at 61.
The statute defining harassment provides, in pertinent part, that one is
guilty of harassment “when, with intent to harass, annoy or alarm another,
the person: . . . communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures[.]” 18 Pa.C.S. § 2709(a)(4). “An intent to harass may be inferred
from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d
719, 721 (Pa.Super. 2013) (internal quotation marks omitted).
Appellant does not contend that the contents of his communications fail
to satisfy the statute. Rather, he argues that his intent was not to harass, but
“to prevent the security officers from keeping him in the unit.” Appellant’s
brief at 33. He claims that his statements to the officers other than Shirey
“were a response to perceived harassment.” Id. at 34. He contends that he
only made “colorful” comments to them when he believed one was going to
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push him, and that when he said he was going to “fuck them,” he meant that
he was going to get them in trouble by calling the police. Id.
Appellant’s contentions are meritless. As discussed above, Appellant
hurled his colorful threatening communications at the four security guards
while they were attempting to get him out of the hospital. As such, not only
is Appellant’s argument that his intent was to stop the guards from keeping
him there contrary to proper application of our standard of review, which
requires us to view the evidence in the light most favorable to the
Commonwealth, but it also makes no sense.
From the totality of the circumstances, the fact finder could reasonably
conclude that Appellant’s threatening communications made while he actively
resisted efforts to remove him from the building were intended to harass,
annoy, or alarm their targets. Accord Commonwealth v. Lutes, 793 A.2d
949, 961 (Pa.Super. 2002) (affirming harassment conviction where the
defendants blocked the victim’s path, “poked him in the chest with his finger
and called him a ‘p*ssy,’” and told him that they would punch him in the
mouth and “take [him] around the corner and beat him”).
Appellant additionally complains that the entire incident happened
“because Shirey mishandled Appellant completely.” Appellant’s brief at 35.
Since he had diagnosed mental health issues, yet voluntarily sought help,
Appellant protests that it was completely unexpected that he would be
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provoked like that by someone working in a psychiatric emergency services
unit, and that the other officers would handle him so roughly. Id.
Appellant’s points are well taken. It is clear from the trial court opinion
that it found Shirey’s actions incredible, and faulted Shirey for escalating the
situation and reengaging with Appellant as the others attempted to
deescalate. See, e.g., Trial Court Opinion, 8/28/19, at 2. However, the
Commonwealth opted to pursue the charges and presented sufficient evidence
to support the convictions. Consequently, we must affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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