No. 1038 APRIL TERM, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Somerset County, at No. 60 Criminal of 1978, Criminal Division.
Wilbert H. Beachy, III, Public Defender, Somerset, for appellant.
Anton H. Zidansek, Assistant District Attorney, Somerset, for Commonwealth, appellee.
Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 272 Pa. Super. Page 492]
Appellant William J. Coolbaugh was arrested on February 7, 1978, charged with assault, disorderly conduct [in violation of 18 Pa.C.S. § 5503(a)(1) and (3)], and resisting arrest. The charge of resisting arrest was dismissed; a jury found appellant not guilty of assault; a judge found appellant guilty of disorderly conduct. Appellant was fined one hundred ($100.00) dollars. The case is before us on direct appeal, with appellant arguing that his conviction "was against the weight and sufficiency of the evidence presented in that the requisite mens rea for this offense [disorderly conduct] was not established."
The evidence, viewed in a light most favorable to the Commonwealth, Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974), establishes that on the evening of February 7, 1978, Officer Thomas Holland of the Shade Township Police Department responded to a call to investigate an accident on Legislative Route 55078. The road was icy, and the wind was blowing snow around, causing drifts. As Officer Holland drove over the crest of a hill he saw an
[ 272 Pa. Super. Page 493]
automobile sitting sideways across the road in front of him, partially in a snowbank. The police officer stopped his car and hollered to the person who was sitting behind the wheel, appellant William J. Coolbaugh. Receiving no response, Officer Holland walked to the passenger side of the vehicle and once again hollered in through the window. Appellant looked over, but looked away without responding. Officer Holland then opened the door of the car, put his head in, and noticed an odor of alcohol in the car. When Officer Holland asked appellant what the problem was, he was told to go to hell, and was also instructed several times by appellant to perform a certain sexual act upon himself. As Officer Holland continued his attempt to find the reason for the car to be sitting across the road, and as appellant became more and more belligerent, appellant's girlfriend, Debra Ann Kohan, walked up to the car and began screaming at the police officer. Officer Holland walked with Ms. Kohan to the rear of the car, where Ms. Kohan explained that the car belonged to her, that she had been driving it, and that she and appellant had been arguing. Appellant got out of the car at this time and pushed Officer Holland, who lost his balance and fell on the ice, hurting his hand against the side of the car and breaking the frames of his glasses. A scuffle ensued, with Ms. Kohan screaming, "rape, rape", until Officer Holland managed to put handcuffs on appellant, and place him in the police car.
Appellant concedes in his brief that his conduct consisted of "obscene language" and "fighting in the sense of pushing, shoving, and grappling", conduct proscribed by § 5503(a) of the Crimes Code.*fn1 Appellant argues, however, that his
[ 272 Pa. Super. Page 494]
conduct was not directed toward the public in general, but rather toward a particular individual, Officer Holland, and that his conduct therefore could not give rise to an inference that he intended to cause public inconvenience, annoyance, or alarm, or that he recklessly created a risk of public inconvenience, annoyance, or alarm. We disagree. Section 5503(c) of the Code provides: "As used in this section the word 'public' means . . . likely to affect persons in a place to which the public . . . has access; among the places included are highways . . . ." Appellant precipitated a scuffle between himself and another person (who happened to be a police officer) in a public highway, under conditions which constituted a danger to other motorists who might come driving down the road. The incident occurred between 8:30 and 9:00 P.M. on a winter's night, the road was snow-covered and icy, and the wind was blowing the snow around. Not only had the car which appellant had been riding in (or driving) turned sideways in the road, the police car skidded upon stopping at the scene. By fighting or engaging in "tumultuous" behavior in the roadway, appellant recklessly created a risk of "public inconvenience, annoyance or alarm" to other motorists who might have come along. We find that the evidence presented by the Commonwealth was sufficient to sustain appellant's disorderly conduct conviction.
Judgment of sentence affirmed.
SPAETH, Judge, dissenting:
I submit that the evidence in this case was insufficient to sustain appellant's conviction of disorderly conduct.*fn1
[ 272 Pa. Super. Page 495]
Viewed in the light most favorable to the Commonwealth as the verdict winner, see Commonwealth v. Steward, 263 Pa. Super. 191, 194, 397 A.2d 812, 813 (1979), the evidence was as follows.*fn2 At approximately 8:30 in the evening of February 7, 1978, Officer Thomas Holland of the Shade Township Police Department received a radio message that an accident had occurred on Legislative Route 55078. He set out for the scene of the accident, proceeding along Route 55078, which was covered with snow and some icy patches. On his way the officer saw an automobile that had skidded and come to a stop sideways across part of the road. He radioed ahead to make sure that other officers had reached the scene of the accident. They had, and he told them that he would be delayed because he wanted to check out an automobile that was sideways across the road. He parked his automobile alongside the sideways automobile, rolled down his window, and called to appellant, who was sitting behind the steering wheel. Receiving no response, the officer got out of his automobile, walked over to the passenger's side of the sideways automobile, and again called to appellant. Appellant looked at the officer and turned away. The officer opened the door on the passenger's side, leaned inside, and asked appellant what the problem was. Appellant told the officer to go to hell, and made some other belligerent responses; he had apparently been drinking. Appellant's girlfriend appeared and began to argue with the officer. He questioned her, and she told him that the automobile was hers ...