J-A17031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD S. MACAULEY
Appellant No. 1843 EDA 2014
Appeal from the Judgment of Sentence June 3, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006025-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 22, 2015
Appellant, Harold S. Macauley, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his bench
trial convictions for harassment and disorderly conduct.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
On June 14, 2013, Appellant visited United Furniture
Warehouse located in Holmes, Pennsylvania to pick up a
set of bunk beds that his wife had ordered a few months
prior. Mahmoud Eid, an employee of United Furniture, was
working that day. When [Appellant] arrived at the store’s
warehouse, he produced a receipt for the furniture. The
receipt bore a woman’s name, so Mr. Eid asked [Appellant]
to sign the receipt and produce his driver’s license so that
[Mr. Eid] could make a copy for the store’s records.
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1
18 Pa.C.S.A. §§ 2709(a)(3) and 5503(a)(4), respectively.
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[Appellant] refused to give his driver’s license to Mr. Eid.
[Appellant], angered by [Mr. Eid’s] request, began to
scream at Mr. Eid that [Appellant] “need[ed] his stuff.”
[Appellant] then went to his car, and returned with his
driver’s license, which he then provided to Mr. Eid. Mr. Eid
told [Appellant] that [Mr. Eid] was going to make a copy
and would return and asked [Appellant] to wait while [Mr.
Eid] went inside the warehouse. Appellant refused, and
followed Mr. Eid into the warehouse, actually into the office
area of the warehouse. Mr. Eid made several requests for
[Appellant] to leave and warned him that if he didn’t leave,
[Mr. Eid] would call the police. Appellant continued to
follow Mr. Eid, and Mr. Eid called the police.
The two began arguing, and [Appellant] exited the
warehouse and told Mr. Eid, “you’re going to feel sorry,
asshole.” Mr. Eid remained in the loading dock area of the
warehouse with a co-worker, watching [Appellant]. [Mr.
Eid] observed Appellant retrieve a gun from his car which
he “slid to get ready for a shot.” Upon observing this, Mr.
Eid shut the warehouse door and called the police a second
time. [Appellant] returned to the warehouse and knocked
on the office door and told Mr. Eid that [Appellant] needed
his license back. Mr. Eid told [Appellant] that [Mr. Eid]
would return it after the police arrived.
[Appellant] testified at trial and admitted that he went to
his truck and chambered a round in his gun. He said he
felt threatened by Mr. Eid and maintained that Mr. Eid told
[Appellant] that [Mr. Eid] would “kick his ass.”
Thereafter, the police arrived on the scene and took
statements from all involved. Appellant was placed under
arrest and charged with terroristic threats, harassment and
disorderly conduct.
(Trial Court Opinion, filed October 15, 2014, at 1-2). Procedurally, following
a bench trial on June 3, 2014, the court convicted Appellant of harassment
and disorderly conduct. On that same date, the court sentenced Appellant
to a $150.00 fine for each count and ordered Appellant to stay away from
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the warehouse. On July 3, 2014, Appellant filed a timely notice of appeal,
along with a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
APPELLANT’S SUMMARY CONVICTION FOR HARASSMENT
WHERE THERE WAS NO EVIDENCE THAT HE ENGAGED IN
A COURSE OF CONDUCT TO ALARM OR SERIOUSLY ANNOY
MR. EID WHICH COURSE OF CONDUCT SERVED NO
LEGITIMATE PURPOSE?
WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
APPELLANT’S SUMMARY CONVICTION FOR DISORDERLY
CONDUCT WHERE THERE WAS NO EVIDENCE THAT HE,
WITH INTENT TO CAUSE PUBLIC INCONVENIENCE,
ANNOYANCE, ALARM OR RECKLESSLY CREATING A RISK
THEREOF, CREATED A HAZARDOUS OR PHYSICALLY
OFFENSIVE CONDITION BY ANY ACT WHICH SERVED NO
LEGITIMATE PURPOSE?
ALTERNATIVELY, WAS APPELLANT’S SENTENCE FOR THE
HARASSMENT CONVICTION ILLEGAL SINCE IT MERGED
WITH HIS CONVICTION FOR DISORDERLY CONDUCT?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Gregory M.
Mallon, we conclude Appellant’s issues one and two merit no relief. The trial
court opinion comprehensively discusses and properly disposes of those
issues. (See Trial Court Opinion at 3-5) (finding: (1) Appellant followed Mr.
Eid into warehouse and office, despite being told repeatedly not to do so;
Appellant followed Mr. Eid without any legitimate purpose and with intent to
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threaten Mr. Eid; evidence was sufficient to support harassment conviction;
(2) Appellant retrieved and chambered gun in public place, without
legitimate purpose and with intent to cause public inconvenience, annoyance
and alarm; evidence was sufficient to support disorderly conduct conviction).
Accordingly, as to Appellant’s issues one and two, we affirm on the basis of
the trial court opinion.
In his third issue, Appellant argues the harassment sentence is illegal
because it should have merged with disorderly conduct for sentencing
purposes. Appellant asserts merger is appropriate because identical facts
supported both convictions and all of the elements of harassment are
included in the elements of disorderly conduct. Appellant concludes this
Court should vacate his judgment of sentence. We disagree.
The Pennsylvania Crimes Code defines the crime of harassment in
pertinent part as follows:
§ 2709. Harassment
(a) Offense defined.—A person commits the crime
of harassment when, with intent to harass, annoy or
alarm another, the person:
* * *
(3) engages in a course of conduct or repeatedly
commits acts which serve no legitimate purpose[.]
18 Pa.C.S.A. § 2709(a)(3). Disorderly conduct is defined in relevant part as
follows:
§ 5503. Disorderly conduct
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(a) Offense defined.—A person is guilty of
disorderly conduct if, with the 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.
* * *
(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.A. § 5503(a)(4) and (c) (emphasis added).
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,
70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062
(Pa.Super. 2011)). Whether two offenses merge for sentencing now turns
on Section 9765 of the Sentencing Code, which addresses merger and
provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
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merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765 (emphasis added).
Instantly, a conviction for harassment requires a person to: (1) intend
to harass, annoy or alarm another person; and (2) engage in a course of
conduct or repeatedly commit acts that serve no legitimate purpose. See 18
Pa.C.S.A. § 2709(a)(3). On the other hand, to commit disorderly conduct, a
person must: (1) intend to cause a public inconvenience, annoyance or
alarm, or recklessly create a risk thereof; and (2) create a hazardous or
physically offensive condition by any act which serves no legitimate purpose.
See 18 Pa.C.S.A. § 5503(a)(4). The plain language of the respective
statutes demonstrates merger is inappropriate. Harassment, unlike
disorderly conduct, requires actions or conduct directed at another person.
Disorderly conduct, however, requires a person to create a hazardous or
physically offensive condition, an element that harassment lacks. As each
offense requires proof of an element that is absent from the other offense,
Appellant’s convictions do not merge for sentencing.2 See 42 Pa.C.S.A. §
9765. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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2
Appellant’s reliance on Commonwealth v. Whetstine, 496 A.2d 777
(Pa.Super. 1985), is misplaced. Merger law has evolved substantially since
the time that case was decided. Instead, Section 9765 and the “elements”
approach to merger govern Appellant’s issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2015
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Circulated 07/09/2015 03:36 PM
Circulated 07/09/2015 03:36 PM
Circulated 07/09/2015 03:36 PM
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