J-S92009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KATHY JO COOK,

                            Appellant                 No. 234 WDA 2016


           Appeal from the Judgment of Sentence October 15, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004927-2015


BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED FEBRUARY 9, 2017

       Appellant, Kathy Jo Cook, appeals from the judgment of sentence

entered following her convictions of resisting arrest, disorderly conduct, and

public drunkenness. We affirm in part, reverse in part, vacate the judgment

of sentence, and remand for resentencing.

       The trial court summarized the facts of this case as follows:

             On April 6, 2015, Officer William Mudron, (hereinafter
       referred to as “Mudron”), responded to a call of a neighborhood
       disturbance at 2221 Boustead Street in the City of Pittsburg[h].
       Mudron responded with his partner, Officer Luff, (hereinafter
       referred to as “Luff”), and met with Stephen and David Link, who
       were the residents at that address. This was the second time
       within an hour that the Officers had been called to respond to a
       disturbance at that location. In meeting with David and Stephen
       Link, the Officers were informed that their next door neighbor,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     [Kathy Jo] Cook [(“Appellant”)], trespassed onto their property
     and was exposing herself. While the Officers were taking the
     information from the Links, [Appellant] was standing on her
     porch on her property yelling repeatedly. The Officers asked her
     to calm down and she refused.

           After speaking with the Links, Mudron went to
     [Appellant’s] property, walked up the staircase and then met her
     on a very small porch which was no more than four by four,
     outside her front door. Mudron told her that he had to speak
     with the individual who was in her residence and she told him to
     get off of her porch and that he needed an “F***ing warrant”.
     [Appellant] attempted to push Mudron down the steps and she
     grabbed ahold of his uniform. Mudron told her to let go of his
     uniform and she refused and he then grabbed her hands and
     pushed her back against a storm door. She went through the
     glass panel of the storm door and then came back at Mudron
     and he had to grab ahold of her hands again and he told her to
     get on the ground which she refused. He then attempted to get
     her hands behind her back and she continued to battle him to
     the point that he believed that it was necessary to use his Taser
     on her. After tasing her the first time, he told her to get her
     hands behind her back, however she put them underneath her
     body. He gave her a second tasing at which time Luff was able
     to handcuff her.

           Throughout this entire incident, [Appellant] was irritable
     and very volatile.    Mudron also noted that she was highly
     intoxicated, that she had extremely slurred speech and a very
     strong odor of an alcoholic beverage. This was confirmed by the
     fact that [Appellant] admitted to them that prior to their arrival
     she had seven to eight beers.

Trial Court Opinion, 8/2/16, at unnumbered 1-3.

     The procedural history of this case was summarized as follows:

           On October 15, 2015, following a non-jury trial,
     [Appellant] was found guilty of the charges of resisting arrest,
     disorderly conduct and public intoxication.     On that date,
     [Appellant] was sentenced to a period of probation of six
     months, during which she was to have an alcohol evaluation
     performed by the Probation Office.      [Appellant] filed post-
     sentence motions and a hearing was held on those motions on

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      February 9, 2016, after which hearing, said motions were
      denied. [Appellant] then filed a timely appeal to the Superior
      Court and was directed pursuant to Pennsylvania Rule of
      Appellate Procedure 1925(b), to file a concise statement of
      matters complained of on appeal. In that statement she has
      maintained that not only was the evidence insufficient to support
      the verdicts rendered in her case, but also, that the verdicts
      were against the weight of the evidence.

Trial Court Opinion, 8/2/16, at unnumbered 1.

      Appellant presents the following issues for our review:

      I.    Whether the evidence presented in this matter was legally
            insufficient to sustain Appellant’s conviction of the crimes
            of resisting arrest, disorderly conduct, and public
            drunkenness.

      II.   Whether the Judge’s verdict was against the weight of the
            evidence.

Appellant’s Brief at 5 (full capitalization omitted).

      In her first issue, Appellant argues that the evidence of record was

insufficient to sustain convictions for the charges of resisting arrest,

disorderly conduct, and public drunkenness.        Appellant’s Brief at 12.   Our

standard of review is well-established:

             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[’s]. 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 may sustain its burden of

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      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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      With regard to the resisting arrest charge, Appellant asserts that the

evidence is insufficient to convict her because she was not preventing Officer

Mudron from discharging a duty or conducting a lawful arrest. Appellant’s

Brief at 19-21.   Appellant contends that there was no lawful arrest to be

made based on her behavior. Id. at 13.

      The crime of resisting arrest is defined in the Crimes Code as follows:

      § 5104. Resisting arrest or other law enforcement

      A person commits a misdemeanor of the second degree if, with
      the intent of preventing a public servant from effecting a lawful
      arrest or discharging any other duty, the person 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.

      In addressing the sufficiency of evidence supporting this conviction,

the trial court provided the following analysis:

             When Mudron arrived on the scene and attempted to talk
      with the Links, [Appellant] was being boisterous and unruly and
      would not honor Mudron’s demand to be quiet even though he
      told her he would talk to her after he had met with the Links.
      Once he did meet with her she displayed an aggressive behavior
      towards him, grabbing his uniform and attempting to push him
      off of a four by four porch, down a steep staircase to the street,

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      which was more than fifteen feet above the street. Even after
      [Mudron] had disengaged himself from [Appellant], she ran at
      him a second time and grabbed him and refused his commands
      to get down on the porch and it was necessary for him to tase
      her not once but twice. It is abundantly clear that all of the
      elements of that particular offense were proven beyond a
      reasonable doubt by the Commonwealth.

Trial Court Opinion, 8/2/16, at unnumbered 5.

      The evidence supports the conclusion that, with the intent to prevent

Officer Mudron from discharging his law enforcement duty and effectuating a

lawful arrest, Appellant, by her actions, created a substantial risk of bodily

injury to Officer Mudron and herself.          Additionally, as a result of her

noncompliance with Officer Mudron’s directives, Officer Mudron was required

to use substantial force to overcome her resistance.       Thus, we agree with

the trial court’s conclusion that, viewing the evidence in the light most

favorable to the Commonwealth, there was sufficient evidence supporting

Appellant’s conviction for resisting arrest.

      Appellant also argues that the evidence is insufficient to convict her of

disorderly conduct because, as she asserts, she did not engage in violent or

tumultuous behavior.     Appellant’s Brief at 18.    She further maintains that

she did not intend to cause substantial harm or a serious inconvenience

when she “asked” Officer Mudron to leave, and as a result, the misdemeanor

enhancement to the disorderly conduct charge was improper. Id.

      Disorderly conduct is defined, in relevant part, as follows:




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     (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:

           (1) engages in fighting or threatening, or in violent or
           tumultuous behavior;

                                        ***

     (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 reasonable warning or request to desist.
     Otherwise disorderly conduct is a summary offense.

18 Pa.C.S. § 5503(a)(1) and (b).

     Viewing    the     evidence   in   the   light   most     favorable   to   the

Commonwealth, the evidence presented at trial supports the conclusion that

Appellant engaged in violent and tumultuous behavior.             Officer Mudron

testified that when he responded to the complaint, Appellant was on her

property yelling repeatedly.   N.T., 10/15/15, at 9.         When Officer Mudron

proceeded to Appellant’s property to further investigate the complaint,

Appellant confronted Officer Mudron, asserting that he was not permitted on

her property. Id. at 10. Officer Mudron testified to the following physical

interaction with Appellant as he ascended the steps to the porch of

Appellant’s property:

     As I began to incline the steps to the front porch, as soon as I
     stepped onto the top porch area, she turned -- basically looked
     right at me, said you need an F’ing warrant, and stepped into me
     with both her hands extended. She grabbed a hold of the front
     side of my uniform and tried to push me back down the steps.

                                        ***

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      At that time, I moved to my right, putting the railing that you
      were asking about in between me and the concrete patio floor.
      At that time, I grabbed a hold of her hands as I was turning to
      the right, and I told her to let go, and she told me no. She just
      flat out said no. So at that point, I grabbed a hold of her hands,
      and I pushed her back into the screen door of her house.

Id. at 12-13.     Officer Mudron explained that after Appellant went through

the screen door, she hit the interior door and “came back at [him].” Id. at

14. Appellant grabbed hold of Officer Mudron again. Id. Appellant refused

to comply with Officer Mudron’s directives to get on the ground, and as a

result, Officer Mudron tried to restrain her.   Id.   Appellant continued to

struggle, forcing Officer Mudron to tase Appellant.    Id. at 14-15.   Officer

Mudron described Appellant’s behavior throughout the interaction as

“volatile.” Id. at 15.

      Although Appellant testified that she simply talked to the Officer and

“reflectively [sic] touch[ed]” him in an attempt to defend herself, N.T.,

10/15/15, at 35-36, the trial court did not find Appellant’s version of events

to be credible.     Thus, viewing the evidence of record in the light most

favorable to the Commonwealth, we conclude that there is sufficient

evidence to establish that Appellant engaged in fighting and in threatening,

violent, and tumultuous behavior. Accordingly, the evidence is sufficient to

sustain Appellant’s conviction for disorderly conduct.    Moreover, because

Appellant persisted in disorderly conduct after Officer Mudron’s request that




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she desist, application of the misdemeanor grading is appropriate.        18

Pa.C.S. § 5503(b).

     Finally, with regard to the conviction for public drunkenness, Appellant

argues that the offense requires that a defendant appear in any “public place

manifestly under the influence of alcohol or a controlled substance.”

Appellant’s Brief at 13. Appellant contends that she cannot be found guilty

of public drunkenness because she was on her own porch, which is not a

“public place” under the statute. Id. at 14-15.

     The Crimes Code defines the offense of public drunkenness, in relevant

part, as follows: “A person is guilty of a summary offense if he appears in

any public place manifestly under the influence of alcohol or a controlled

substance.”   18 Pa.C.S. § 5505.    Section 5505 does not define the term

“public.” However, in Commonwealth v. Meyer, 431 A.2d 287 (Pa. Super.

1981), this Court observed that:

     [t]he term does appear, however, in two places in the Crimes
     Code: in the section dealing with prostitution, section 5902, and
     in the section dealing with disorderly conduct, section 5503.
     Section 5902(f) defines it as “any place to which the public or
     any substantial group thereof has access.”          The ordinary
     meaning of “access” is: “the right to enter or make use of;” “the
     state or quality of being easy to enter.”

     Section 5503(c) defines public places as, inter alia, “any
     premises which are open to the public.”

Meyer, 431 A.2d at 289 (footnotes omitted).        More specifically, section

5503(c) provides as follows:




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     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(c).

     In Meyer, this Court deemed the evidence insufficient to establish the

“public” element of public drunkenness where the altercation took place at a

V.F.W. Post, a private club to which the public did not have access. Meyer,
431 A.2d at 289. In Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa.

1995), the Supreme Court confirmed this Court’s conclusion that an

appellant’s use of loud and vulgar terms when standing on his own porch did

not justify arresting the appellant for public drunkenness. The Biagini Court

explained that the appellant did not appear in any public place under the

influence of alcohol or a controlled substance.   Id. at 495.   However, we

note that in comparison, this Court in Commonwealth v. Whritenour, 751
A.2d 687 (Pa. Super. 2016), concluded that the “public” element of public

drunkenness was established where the evidence established that appellant

was in the middle of a road while intoxicated, even though the road was in a

private community.      We explained that the road was public as it was

traversed by members of the community and their invitees or licensees. Id.

at 688.

     Turning to the case before us, the evidence establishes that Appellant

was visibly intoxicated during the events of that evening. N.T., 10/15/15, at

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15-16. Appellant conceded that she had been drinking throughout the day

prior to this incident. Id. at 40. Moreover, Appellant does not contest that

she was “manifestly under the influence of alcohol or a controlled

substance,” but asserts that she did not appear so in a “public place.”

Appellant’s Brief at 15.     Therefore, the determinative question is whether

Appellant was in a “public place.”

        Our   review   of   the   record,   in   a   light   most   favorable   to   the

Commonwealth, reveals the following with regard to the establishment of

the “public” element of the public drunkenness charge. 18 Pa.C.S. § 5505.

Officer Mudron testified that when he responded to the complaint, Appellant

was yelling at the Links and Officer Mudron from her front porch. N.T., Trial,

at 9.     Furthermore, the altercation with Officer Mudron took place on

Appellant’s front porch. Id. at 10-15. Because the Commonwealth has not

presented evidence establishing the contrary, we deem the porch to be on

Appellant’s private property. Thus, we are constrained to conclude that the

Commonwealth’s evidence regarding Appellant’s conduct while on her porch

was insufficient to establish the “public” element of the public drunkenness

statute and reverse that conviction. Meyer, 431 A.2d at 289; Biagini, 655
A.2d at 497.

        In her second issue, Appellant argues that the convictions are against

the weight of the evidence. Appellant’s Brief at 23. Appellant asserts that

the trial judge’s verdict improperly relied upon the insufficient evidence


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admitted by the Commonwealth. Id. Furthermore, Appellant contends that

the verdict was based only on Officer Mudron’s “incredulous testimony

regarding the incident” that was inconsistent with Appellant’s and defense

witness Allison McCurry’s testimony. Id. at 23-24. Appellant maintains that

“the guilty verdict imposed by the judge was so contrary to the evidence

that any reasonable person’s sense of justice, including that of the court,

would be appalled by such a miscarriage of justice.” Id. at 24. Appellant

seeks a new trial. Id. at 24-25.

      The law pertaining to weight-of-the-evidence claims is well settled.

The weight of the evidence is a matter exclusively for the fact finder, who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.   Commonwealth v. Forbes, 867 A.2d 1268,

1272–1273 (Pa. Super. 2005).       The grant of a new trial is not warranted

because of “a mere conflict in the testimony” and must have a stronger

foundation    than   a   reassessment     of   the   credibility   of     witnesses.

Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa. Super. 2007). Rather,

the role of the trial judge is to determine that, notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them or to give

them equal weight with all the facts is to deny justice.       Id.      An appellate

court’s purview:

      is extremely limited and is confined to whether the trial court
      abused its discretion in finding that the jury verdict did not shock
      its conscience. Thus, appellate review of a weight claim consists
      of a review of the trial court’s exercise of discretion, not a review

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       of the underlying question of whether the verdict is against the
       weight of the evidence.

Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (internal

citations omitted).      “[T]he trial court’s denial of a motion for a new trial

based on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

       Here, the trial judge sitting as the finder of fact was free to believe all,

part, or none of the evidence against Appellant. The trial court weighed the

evidence and concluded that Appellant was guilty of resisting arrest,

disorderly conduct, and public drunkenness.        As explained, we agree with

the trial court’s conclusion that there was sufficient evidence presented at

trial to sustain the convictions of resisting arrest and disorderly conduct.1

Despite Appellant’s rendition of the events contradicting Officer Mudron’s

testimony, the trial court did not find Appellant’s version of the events to be

credible. Based upon the evidence presented, the trial court’s determination

on those two convictions is not an abuse of discretion.         Thus, we decline

Appellant’s invitation to assume the role of fact finder and to reweigh the

evidence. Appellant’s second claim lacks merit.

       In conclusion, we affirm the resisting arrest and disorderly conduct

convictions and reverse Appellant’s conviction for public drunkenness.
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1
  Our conclusion that the Commonwealth failed to present sufficient evidence
to sustain the public drunkenness conviction was based on the
Commonwealth’s failure to establish the “public” element of that offense.



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Because vacating Appellant’s sentence for public drunkenness may disrupt

the trial court’s overall sentencing scheme, we vacate her judgment of

sentence in its entirety and remand for resentencing. See Commonwealth

v. Barton–Martin, 5 A.3d 363, 370 (Pa. Super. 2010) (providing that

where vacating a sentence disrupts a trial court’s overall sentencing scheme,

this Court will remand to the trial court for resentencing).

      Judgment of sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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