No. 321 January Term, 1977, Appeal from Order of the Superior Court at No. 7 October Term, 1976, Affirming Judgment of Sentence of the Court of Common Pleas, Criminal, of Bucks County, at No. 1645 of 1973.
Martin J. King, Public Defender, Richard R. Fink, First Asst. Public Defender, Bruce K. Doman, Asst. Public Defender, Doylestown, for appellant.
Kenneth G. Biehn, Dist. Atty., Peter F. Schenck, Doylestown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Manderino, J., took no part in the consideration or decision of this case. Roberts, J., files a dissenting opinion.
Appellant, John DeFrancesco, was arrested on June 21, 1973 by the Quakerstown Borough Police, Bucks County. The basis of appellant's arrest stemmed from his failure to disperse upon an official order. Act of December 6, 1972, P.L.No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 5502.*fn1
Appellant was tried by a judge sitting with a jury and was found guilty of violating § 5502 of the Crimes Code.
Post-verdict motions were denied and on August 21, 1975, appellant was sentenced to a term of imprisonment of six months to twenty-three months. On September 17, 1975, the court below, acting pursuant to appellant's petition for reconsideration of sentence, reduced the term of imprisonment to three months to twenty-three months.
An appeal from the judgment of sentence was taken to Superior Court, which affirmed. Commonwealth v. DeFrancesco, 240 Pa. Super. 705, 360 A.2d 235 (1976). Appellant filed a petition for allowance of appeal in this court, which we granted.
Appellant first argues the evidence is insufficient to sustain his conviction for violating § 5502 of the Crimes Code, "Failure to Disperse Upon Official Order". We do not agree.
Appellant's initial attack centers on his assertion that the Commonwealth failed to produce evidence sufficient, as a matter of law, to meet the statutory element of " three or more persons participating in a course of disorderly conduct . . . ." § 5502 of the Crimes Code.
In Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975), this court reiterated the test of judging the sufficiency of the evidence by an appellate court:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The factfinder is free to believe all, part, or none of the evidence. . . ." (Citations omitted.)
In Commonwealth v. Cook, 468 Pa. 249, 361 A.2d 274 (1976), we delineated the necessary elements of § 5502 of the Crimes Code:
"In § 5502, an actor is in violation of the section if, when three or more persons are engaged in 'disorderly conduct,' which may cause, or may reasonably be expected to cause, 'substantial harm or serious inconvenience, annoyance or alarm,' a police officer or other public official acting within the scope of his authority orders the participant and others in the area to disperse and such actor refuses to obey such order, he or she is guilty of a misdemeanor of the second degree.
"The gravaman of the section is the failure to obey an order by a police officer or other public official to disperse when three or more persons are engaging in a 'course of disorderly conduct.'" (Footnote omitted.)
See also Commonwealth v. Cook, supra, concurring opinion by Mr. Justice Pomeroy, joined by Mr. Justice Nix.
The essential elements of § 5502 are:
1. Three or more persons are "participating in a course of disorderly conduct."
2. The above "course of disorderly conduct" may cause or reasonably be expected to cause "substantial harm or serious inconvenience, annoyance or alarm."
3. A policeman or other public official acting within his scope of authority orders the participants and others in the area to disperse.
. The person refuses such dispersal order or knowingly fails to comply with the order.
If the evidence presented at trial, from whatever source, substantiates the above elements, a criminal defendant is guilty of a misdemeanor of the second degree. Appellant in the instant case does not challenge the existence of sufficient evidence, if believed, to satisfy the last three elements of the offense charged. Appellant's sole contention is that the Commonwealth has not introduced evidence sufficient to sustain the establishment of the first enumerated element, i. e., three or more persons are participating in a course of disorderly conduct.
Specifically, appellant argues that the evidence, even if viewed under the Rose standard, does not establish that "three or more persons" were "participating in a course of disorderly conduct." The emphasis of the argument centers on the "three or more persons" requirement of § 5502. The facts surrounding this issue are as follows.
On June 21, 1973, at approximately 7:00 or 7:30 p. m. a group of twenty-five persons, between the ages of sixteen and twenty-four gathered at Triangle Park, in the middle of Quakerstown and across the street from the police station. Appellant was identified as being a member of this group. The activities of the group included beer drinking, throwing beer cans, blocking traffic on the street bordering the park, yelling obscenities*fn2 and urinating in the alleys and streets surrounding the park. Between the start of the above gathering and 10:45 p. m. the police received numerous complaints from residents living near the park. The police warned the group on several occasions, but the above behavior continued. At approximately 10:45 p. m., the police arrested Kenneth Kramer for urinating on the street, and George Howard for attempting to interfere with Kramer's arrest. After transporting Kramer and Howard to the police station, the police returned to the park. The group continued the above-described conduct. The police ordered
the crowd to disperse. Upon failure to comply with the order, Joseph Frank and John Howard were arrested. While the above arrests were being completed, appellant approached the police car in which Joseph Frank and John Howard were seated. Police Officer Joseph Lapinski told appellant to leave, but appellant informed the officer that he wanted to speak to one of the occupants of the car. Lapinski replied that all talking must take place at the police station. The police then took Joseph Frank and John Howard to the police station at approximately 11:00 p. m.
During the processing of Howard and Frank, appellant, accompanied by Roger Leonard and a group of unidentified individuals, congregated outside of the police station. The testimony varies about the size of the group which accompanied appellant and Leonard, placing the size of the group between a minimum of three to four to a maximum of seven to ten individuals in addition to appellant and Leonard.
Leonard began banging at the police station door and appellant yelled obscenities and demanded admittance to the station. The testimony reveals that in addition to obscenities, appellant called the police officers "pigs." The police exited the station and arrested Leonard. The officers ordered appellant and the members of the accompanying group to disperse. The group, save appellant, dispersed, removing themselves to either the street or the park. Appellant, however, continued his verbal abuse of the police officers as he slowly backed away. The police officers continued to admonish appellant to cease the verbal harangues and also continued to order him to disperse. After a few warnings and dispersal orders, appellant was arrested and charged with violating § 5502 of the Crimes Code. Officer Lapinski testified that during the above confrontation, the six arrested individuals continued to be disorderly in the police station itself.
Initially, concerning appellant's arguments as to the statutory requirement of three or more persons being disorderly before a police officer may issue a § 5502 dispersal order, a review of the evidence, in the light most favorable
to the Commonwealth and drawing all proper inferences, reveals sufficient evidence to sustain appellant's conviction.
The testimony reveals that all of the above recited events took place within a forty to forty-five minute period. The factfinder may have chosen to consider all of the events leading up to appellant's arrest from 10:45 until 11:30 as evidence sufficient to satisfy the three or more person requirement of § 5502. This evidence is in the record and it is not the function of an appellate court to retry or substitute its judgment for that of a petit jury. The record also reveals that while appellant was yelling obscenities and Leonard was banging on the door of the police station, the six previously arrested individuals continued a course of conduct described as disorderly. Again, the record reveals sufficient evidence, if believed by the jury, for a finding that three or more persons were engaging in a course of disorderly conduct at the time of the dispersal order. We believe the evidence, when reviewed under the Rose standard, is sufficient to meet the requirement of three or more persons under § 5502 of the Crimes Code.
Appellant's second argument is that the evidence is insufficient under § 5502 because at the time of the dispersal order he was the only individual present and, therefore, he could not "disperse" but only "leave."
Appellant's argument borders on the frivolous. Appellant bases his argument on the fact that because the six or seven individuals who accompanied him and Leonard to the police station dispersed upon the police's initial order, that he being the only person to defy such order, subsequently could not be ordered to disperse. We do not agree. If the initial dispersal order was valid, see discussion, supra, appellant's noncompliance cannot be justified or excused by his companions' compliance. The police were initially warranted in ordering the crowd's dispersal. Appellant did not disperse, but his supporting group did leave the area. The police continued to order appellant to leave the area, and he continued to refuse. His refusal was violative of § 5502 and the record is sufficient to sustain his conviction.
Appellant next argues that the court below erred in its charge to the jury. We do not agree. The complained-of portions of the charge are as follows:
"Now, if you accept the police officer's version, you have two questions. If you accept the police officer's version that DeFrancesco and Leonard were leading a group of seven to ten youths, pounding on the door, creating a rumpus, using bad language, that sort of thing, and Leonard was arrested and the rest were all told to disperse and all the rest of them did disperse except the defendant here. Then, I think you should find him guilty (N.T. 116).
"If you should accept the Commonwealth's version of the incident that DeFrancesco and Leonard came to the police station leading a group of seven to ten youths and they continued to create a rumpus there, pounding on the door, using bad language -- and you recall the testimony -- Leonard was arrested, the rest of them did disperse but DeFrancesco did not ...