Commonwealth v. Leonhard

¶1concurring and dissenting:

¶2I would hold that appellant was properly convicted by the jury on both counts. As the majority properly observes, disorderly conduct1 is that action done “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.” Focusing solely on that testimony quoted by the majority, there is, to my view, sufficient evidence to sustain appellant’s conviction of this crime.

¶3Deputy Warden High, after describing the start of this occurrence in the jail, testified that appellant “was in with the other group of men that were causing the disturbance.” Further after describing certain damage within the jail as being the responsibility of a “general group” of prisoners, the warden identified this appellant as being seen after the start of the disturbance “with this group.”

¶4The test of the sufficiency of the evidence is whether, accepting as true all the evidence upon which, if believed, the fact-finder could properly have based his verdict, it is sufficient in law to prove the defendant guilty of the crime charged beyond a reasonable doubt. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). It is axiomatic that the evidence is to be reviewed in a light most favorable to the verdict winner (Commonwealth). Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). In so doing, we will *124accept as true the Commonwealth’s evidence and all reasonable inferences arising therefrom. Commonwealth v. Portalatin, 223 Pa.Super. 33, 297 A.2d 144 (1972).

¶5Viewed in that light I have no difficulty in holding the evidence sufficient to specifically identify appellant as an actor in the occurrence involved herein. And there can be no doubt that the occurrence involved meets the definition as set forth in the definition of disorderly conduct, and in particular Section 4 above. It is of no importance to this decision that appellant was not specifically identified as having engaged in fighting, making unreasonable noise or using obscene language. Appellant was specifically identified as a member of a group of prisoners that created a hazardous or physically offensive condition, and as such it was properly accepted by the jury. I believe that the evidence not only proved appellant’s presence on the scene, it formed a proper basis for a finding that appellant, as a member of the group at the core of the hazardous or physically offensive condition, was an actor in the creation of that condition.

¶6I would affirm the judgment of sentence on both disorderly conduct and failure of a disorderly person to disperse upon official order.