Com. v. Strunk, J. ( 2016 )

J-S33034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES MATTHEW STRUNK
Appellant No. 1621 WDA 2015
Appeal from the Judgment of Sentence September 21, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002700-2014
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 17, 2016
Appellant, James Matthew Strunk, appeals from the judgment of
sentence entered in the Blair County Court of Common Pleas,1 following his
conviction for the summary offense of public drunkenness.2 We affirm.
The relevant facts and procedural history of this case are as follows.
At approximately 12:50 p.m. on October 15, 2014, Sergeant Robert Archey
and Patrolman Erik Stirk responded to a dispatch regarding a person lying in
____________________________________________
1
Although Appellant purports to appeal from the order finding him guilty of
public drunkenness, the appeal properly lies from the judgment of sentence
imposed following his bench trial conviction for that offense. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155 (Pa.Super. 2007) (stating
direct appeal in criminal proceeding properly lies from judgment of
sentence).
2
18 Pa.C.S.A. § 5505.
___________________________
*Former Justice specially assigned to the Superior Court.
J-S33034-16
an alley. The officers arrived on the scene within minutes. Sergeant Archey
was the first to arrive. As he approached the reported location, a woman
pointed at the alley. From the street, Sergeant Archey observed Appellant
leaning against a van in a parking area adjacent to the alley. Appellant was
unstable and unsteady on his feet. As Sergeant Archey spoke to Appellant,
the officer noticed that Appellant appeared “out of it,” “a little confused,”
and “smiling.” (N.T. Trial, 9/15/15, at 7). Appellant also said he was “just a
little high.” Id. Appellant walked to the other end of the van in a swaying
and unsteady manner. Sergeant Archey observed a hypodermic needle on
the ground where Appellant had originally been standing. When Patrolman
Stirk arrived on the scene, he observed Appellant had an unsteady gait and
slurred speech. After Sergeant Archey brought Patrolman Stirk’s attention
to the hypodermic needle, Patrolman Stirk arrested Appellant. At that point,
Patrolman Stirk detected an odor of alcohol on Appellant’s breath.
Following a bench trial, the court convicted Appellant of public
drunkenness. On September 21, 2015, the court sentenced Appellant to pay
a $200.00 fine plus costs of prosecution. Appellant filed a timely notice of
appeal on October 6, 2015. The court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied.
Appellant raises the following issue for our review:
DID THE [TRIAL] COURT COMMIT REVERSIBLE ERROR
WHEN IT FOUND THAT THE COMMONWEALTH HAD MET
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J-S33034-16
ITS BURDEN [OF] PROOF BEYOND REASONABLE DOUBT
AS THE [TRIAL] COURT CONCLUDED THAT…APPELLANT
WAS “MANIFESTLY UNDER THE INFLUENCE OF ALCOHOL
AND/OR CONTROLLED SUBSTANCE” AS REQUIRED BY THE
STATU[T]E?
(Appellant’s Brief at 4).
Our standard of review for sufficiency of the evidence claims implicates
the following legal principles:
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. 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 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines the offense of public drunkenness in
pertinent part as follows:
-3-
J-S33034-16
§ 5505. Public drunkenness and similar misconduct
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…to the degree that he may
endanger himself or other persons or property, or annoy
persons in his vicinity.
18 Pa.C.S.A. § 5505.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Timothy M.
Sullivan, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed October 28, 2015, incorporating
its Opinion and Order, filed September 18, 2015, at 2-5) (finding: Officers
Archey and Stirk testified credibly; location where officers confronted
Appellant constituted “public place”; evidence established that Appellant was
person who was reported lying in alley; responding officers testified that
Appellant was unsteady and unstable on his feet, swayed with staggered
gait, slurred his speech, and had odor of alcohol on his breath; officers
recovered hypodermic needle from area where Appellant had been standing;
officers’ observations established beyond reasonable doubt that Appellant
was manifestly under influence of alcohol and/or controlled substance to
extent he might have posed danger to himself or others, or annoyed persons
in his vicinity). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
-4-
J-S33034-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
-5-
Circulated 04/29/2016 10:52 AM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
CR 2700-2014
v.
JAMES M. STRUNK,
DEFENDANT
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OPINION PURSUANT TO RULE 1925 OF THE
PA RULES OF APPEALLTE PROCEDURE
FACTUAL/PROCEDURAL HISTORY:
The Defendant, James M. Strunk, was originally charged with Use/Possession
of Drug Paraphernalia and Public Drunkenness for an incident which allegedly
occurred on or about October 15, 2014 within the City of Altoona. The Commonwealth
later withdrew the Use/Possession of Drug Paraphernalia charge, as confirmed in an
Order entered July 13, 2015 by the Honorable Wade A. Kagarise. The matter proceed
to a summary trial on September 15, 2015, at which time the Commonwealth presented
the testimony of Sergeant Robert Archey of the Blair County Sheriffs Office and
Patrolman Erik Stirk of the Altoona Police Department. The Defendant testified in his
own behalf.
1
We entered an Opinion and Order dated September 17, 2015, consisting of 28
specific Findings of Fact and 10 Conclusions of Law. We adjudicated the Defendant
guilty of the summary offense of Public Drunkenness. On September 21, 2015, we
sentenced the Defendant to pay a $200 fine plus costs of prosecution. On October 6,
2015, the Defendant filed a timely Notice of Appeal and a Petition to Proceed In Forma
Pauperis. We entered a Rule 1925(b) Order on October 13, 2015, directing the
Defendant to file his Concise Statement of the Errors Complained of on Appeal within
twenty (21) days thereafter. The Defendant has complied with said Order, filing his
Concise Statement on October 21, 2015.
STANDARD OF REVIEW:
Superior Court's standard of review from an appeal of a summary conviction
heard de novo by the trial court is limited to a determination of whether an error of law
has been committed and whether the findings of fact are supported by competent
evidence. Commonwealth v. Marizzaldi, 814 A.2d 249 (Pa. Super. 2002).
DISCUSSION:
In his Concise Statement, the Defendant raises eight (8) specific allegations of
error as follows:
(a) That the Court erred in admitting into evidence the Commonwealth's
pictures of the alley in question at the trial over the objection of defense counsel as a
violation of the Rules of Discovery.
The admission of evidence is committed to the sound discretion of the trial court,
and a trial court's ruling regarding the admission of evidence will not be disturbed on
appeal unless that ruling reflects manifest unreasonableness or partiality, prejudice, bias,
2
or ill-will, or such lack of support to be clearly erroneous. Commonwealth v. Minich, 4
A.3d 1063 (Pa. Super. 2010).
The evidence in question consisted of photographs of the alley and parking lot
area where the Defendant was found by the police. During the Commonwealth's case-in-
chief, we initially sustained the Defendant's objection and precluded admission of the
photographs since they had not been provided in discovery. The photographs had
essentially been taken "on the eve" of trial.
When reviewing a ruling on an alleged discovery violation, the reviewing court
must first determine whether a discovery violation, in fact, occurred before it can reach
the question of whether or not it was prejudicial to the defense. Commonwealth v.
Thomasello, 693 A.2d 1310 (Pa Super. 1997). The standard used in determining whether
the trial court has erred in regard to a discovery violation is an abuse of discretion
standard. Id.After the testimony of the Defendant, however, we allowed the Commonwealth to
introduce the photographs into the record during cross-examinationof the Defendant and
the rebuttal testimony of Sergent Archey. The Defendant had denied that he was in the
alley way and claimed he was on his friend's property. The Defendant denied that he ever
fell or was laying on the ground.
The Defendant put the exact location of where this event occurred at issue during
his testimony, i.e., whether this incident occurred on private property or on an area
accessible to the public. Quite frankly, the admission of the photographs became highly
relevant and probative, and certainly assisted this Court, as the trier of fact, m
understanding the general lay-out of the area where the subject incident occurred.
3
Rule 401 defines "relevant evidence" as follows:
"Relevant evidence" means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
(b) That the Court erred in its conclusion that the Commonwealth sustained
its burden of proof beyond reasonable doubt which is contrary to the evidence.
(c) That the Court erred in finding that the Defendant was the person
reported as lying in the alley pursuant to the radio dispatch.
(d) That the Court erred in concluding that the Defendant was under the
influence of alcohol and/or a controlled substance to the extent that he posed a
potential danger to himself or others.
(t) That the Court erred in determining that the Defendant was manifestly
under the influence of alcohol and/or a controlled substance and as such the
Commonwealth could not sustain its burden of proof.
The test for sufficiency of evidence in a criminal case is whether, viewing all the
evidence admitted at trial in a light most favorable to the Commonwealth, there is
sufficient evidence to enable the trier of fact to find every element of the crime beyond a
reasonable doubt. Commonwealth v. Tribble, 467 A.2d 1130 (Pa. 1983).
4
When reviewing the results of non-jury trial, the Superior Court gives great
deference to the factual findings of the trial court. Recreation Land Corp. v. Hartzfeld,
947 A.2d 771 (Pa. Super. 2008).
In addressing alleged errors (b) through (d) and (f), we herein incorporate our
Opinion and Order dated September 17, 2015. In entering our Opinion and Order, we
found the testimony of the Commonwealth witnesses, Sergeant Robert Archey and
Patrolman Erik Stirk, to be credible. As the trial judge, we were in a position to observe
the law enforcement officers during their testimony, including the cross-examination by
defense counsel.
(e) That the Courterredin determining that the Defendant was in a public
place, when he was on private property.
In our Opinion and Order dated September 17, 2015, we found that the Defendant
was the individual laying in the alleyway that prompted the 9-1-1 dispatch [Finding of
Fact No 1; Conclusion of Law No. 3]. We also found that when law enforcement arrived
on scene, the Defendant was standing on the northside of the alley leaning against a van
[F.. of F. No. 4]. The van was in a parking spot [F. of F. No. 12] near the alley and that
both the van and alley are visible to the public [F. of F. No. 16 and Commonwealth
Exhibits 1 and 2].
In our Conclusion of Law [No. 7], we cited the case of Commonwealth v.
Whritenour, 751 A.2d 687 (Pa. Super. 2000) in support of our decision.
In Whritenour, the defendant was convicted of public drunkenness and disorderly
conduct. Upon appeal, the Superior Court held that the "public elements of public
drunkenness and disorderly conduct were met though the road on which the defendant
was arrested was located in a private community: the community was "public" in that it
consisted ofresidents of the homes of the community, their guests and employees, as well
5
as visitors attending religious events, users of the public library, and delivery people, all
of whom utilized the road. 751 A.2d at 688.
The Court in Whrltenour further noted that Black's Law Dictionary (5th Ed.
1979) defines private property as "such property as belongs absolutely to an individual,
and of which he has the exclusive right of disposition." 751 A.2d at 688.
In further support of our decision, we cite Commonwealth v. Meyer, 431 A .2d
287 (Pa. Super. 1981), wherein the Court observed that
[t]he term "public" 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."
In the case before us, the alleyway and parking lot were open; visible and
accessible to the public. Certainly, the residents of the homes located in the general
vicinity (and their guests, as the Defendant was on the date in question), had access to
both the alleyway and parking lot. Therefore, the subject alleyway and parking lot fails
to fit the definition of private property as set forth above.
(g) That the Court erred in failing to consider the transcript used in the
omnibus pretrial hearing to find inconsistencies in the officer's testimony.
(h) That Court appointed legal counsel failed to have the Court adopt said
transcript as an exhibit.
Defense counsel asserted that he "failed to have the Court adopt said transcript as
an exhibit". It appears that counsel is raising an issue regarding his own effectiveness.
6
In a claim of ineffective assistance of counsel, a petitioner must plead and prove
by a preponderance of the evidence that (1) the underlying substantive claim has arguable
merit; (2) counsel whose effectiveness is being challenged did not have a reasonable
basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of that counsel's deficiency. Commonwealth v. McGill, 832 A.2d 1014, 1020 (Pa.
2003).
We find no error by trial counsel. The Commonwealth witnesses were subject to
cross-examination. As stated above, we found their testimony to be credible. To adopt
the pretrial transcript as an exhibit would have had no effect.
Therefore, we respectfully request your Honorable Superior Court of
Pennsylvania to affirm our Opinion and Order of September 17, 2015 and our judgment
of sentence.
n J.
Dated: October ~ 8 , 2015
7
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
CR 2700- 2014
v.
JAMES M. STRUNK, C-)
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DEFENDANT r~--. ,J)
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HON. TIMOTHY M. SULLIVAN
JACKIE ATHERTON-BERNARD, ESQUIRE
EDWARD E. ZANG, ESQUIRE
OPINION AND ORDER
FACTUAL/PROCEDURAL HISTORY:
The Defendant, James M. Strunk, was originally charged with Use/Possession
of Drug Paraphernalia and Public Drunkenness for an incident which allegedly
occurred on or about October 15, 2014 within the City of Altoona. The Commonwealth
later withdrew the Use/Possession of Drug Paraphernalia charge, as confirmed in an
Order entered July 13, 2015 by the Honorable Wade A. Kagarise. The matter proceed
to a summary trial on September 15, 2015, at which time the Commonwealth presented
the testimony of Sergeant Robert Archey of the Blair County Sheriffs Office and
Patrolman Erik Stirk of the Altoona Police Department. The Defendant testified in his
own behalf. We now proceed to make the following:
FINDINGS OF FACT:
1. On October 15, 2014, at approximately 12:50 p.m., the Altoona Police
were dispatched to the area of Second Street and Fifth Avenue Alley within the City of
Altoona due to a report of an individual lying in the alley.
2. On the date and at the time in question, Sergeant Robert Archey was on
duty and in full uniform within his employment by the Blair County Sheriffs Office.
3. On the same date and time, Patrolman Erik Stirk was on duty, in full
uniform and in a marked police cruiser within his employment as a City of Altoona
Police Officer.
1
4. Sergeant Archey was the first to arrive on scene. As he approached the
comer of Second Street and Fifth Avenue Alley, a woman pointed in the direction of the
alley. When Sergeant Archey went to the alley, there was no one lying on the ground,
however, he did observe a male (later identified as the Defendant) standing on the
northside of the alley leaning against a vehicle (a van).
5. Sergeant Archey approached the Defendant and noted that he was unstable
and unsteady on his feet. As he spoke, Sergeant Archey indicated that the Defendant
"seemed out of it, "confused", "happy and smiling", and that the Defendant commented
that he was 'just a little high".
6. The Defendant stated that he knew the owner of the van against which he
was leaning.
7. As the Defendant started walking toward the rear of the van, Sergeant
Archey again observed that he was unsteady and swaying. The Defendant then· began
walking toward the front of the van, at which time, Sergeant Archey escorted him toward
the rear and observed a hypodermic needle with an orange cap lying on the ground by the
tire where the Defendant had originally been standing.
8. Patrolman Stirk confirmed that he received a dispatch around 12:50 p.m.
regarding a person lying in the alley, activated his siren and emergency lights and
traveled to the scene.
9. While driving to the scene, Patrolman Stirk observed two people pointing
toward the alley and as he turned down toward the alley, noticed Sergeant Archey
speaking to the Defendant, who was behind the van in the driveway.
10. Patrolman Stirk exited his police cruiser and spoke to the Defendant,
noting that he slurred his speech and was unsteady on his feet as he tried to walk around
the vehicle.
11. When Patrolman Stirk arrived on the scene, Sergeant Archey pointed out
the hypodermic needle to Patrolman Stirk, who took same into evidence.
12. The van against which the Defendant was leaning was in a parking spot
near the alley.
13. Patrolman Stirk confirmed that he had safety concerns as the original
dispatch was that there was unresponsive male in the alley. He arrived on scene within
five minutes of the dispatch.
14. After Sergeant Archey pointed out the hypodermic needle, Patrolman Stirk
placed the Defendant in custody and then detected an odor of alcoholic beverage
emanating from his breath.
2
15. Both Sergeant Archey and Patrolman Stirk confirmed that alleys in the
City of Altoona are approximately 15 feet wide. Patrolman Stirk noted that the back of
the van was within 1 to 2 feet of the alley. In this particular area, the houses are situated
very close together.
16. Both Sergeant Archey and Patrolman Stirk confirmed that the van and
alley are visible to the public and are not hidden or obstructed in any way.
17. Patrolman Stirk, based upon his experience and training, opined that the
Defendant was under the influence of alcohol and/or a controlled substance and perceived
that the Defendant posed a danger to himself or others, or constituted a public nuisance.
18. Both Sergeant Archey and Patrolman Stirk made an in-court identification
of the Defendant as being the individual involved on the date of incident.
19. At no time did Sergeant Archey or Patrolman Stirk observe any bruising,
scratches, cuts or gravel about the Defendant's person.
20. Both Sergeant Archey and Patrolman Stirk confirmed that the Defendant
was cooperative with them.
21. Sergeant Archey recalled an ambulance coming to the scene, although
Patrolman Stirk did not recall seeing an ambulance. Both confirmed that to their
knowledge, the Defendant did not receive any medical treatment at the scene or later in
the day.
22. Patrolman Stirk confirmed that there was no blood alcohol test nor drug
test performed on the Defendant.
23. Patrolman Stirk later opined that based upon his experience, training and
observations, that he felt to allow the Defendant to walk the streets of Altoona would
pose a risk to himself and/or others.
24. The Defendant admitted during his testimony that he was in the area of the
alley way of Second Street and Fifth Avenue and standing by the van on the date and at
the time in question. He indicated that a friend of his (Frank Lang) lived in the house
nearby. He further acknowledged that he is aware that his friend has pending drug
delivery charges.
25. The Defendant confirmed that he spoke to both Sergeant Archey and
Patrolman Stirk on scene. Although the Defendant did not specifically recall, he
admitted that he could have said that he "may be a little high."
26. Commonwealth Exhibits 1 and 2, being photographs, depict the alley way
and area in question where law enforcement confronted the Defendant on the date and at
the time in question.
27. We find the testimony of the Commonwealth witnesses, Sergeant Archey,
and Patrolman Stirk, to be credible and truthful in all respects.
3
28. During his testimony, the Defendant admitted that he "may have fibbed"
when he asked the police officers "Why are you here?" when they arrived on scene.
In light of the foregoing Findings of Fact, we hereby make the following
CONCLUSIONS OF LAW:
1. The Commonwealth has sustained its burden of proof in proving each and
every element of the charge of Public Drunkenness, 18 Pa. C.S.A. Section 5505, beyond
a reasonable doubt.
2. We specifically find that the location where law enforcement confronted
the Defendant constitutes a "public place".
3. We find that circumstantial evidence establishes that the Defendant was
the person who was reported as lying in the alley through the dispatch received by both
Sergeant Archey and Patrolman Stirk.
4. The testimony by the Commonwealth witnesses that they observed the
Defendant being unsteady and unstable on his feet, swaying and having a staggered gate,
slurring his speech and further, Patrolman Stirk detecting an odor of alcoholic beverage
emanating from the Defendant's breath, all support the Commonwealth's case that the
Defendant was "manifestly under the influence of alcohol or a controlled substance" on
the subject date of incident.
5. We find that the Commonwealth established through circumstantial
evidence, that the Defendant was the individual lying in the alley that prompted the
dispatch.
6. The Defendant was under the influence of alcohol and/or controlled
substance to the extent that he posed a potential danger to himself or others, or where he
potentially could annoy persons in his vicinity, consistent with Patrolman Stirk's
testimony.
7. "Public elements of offenses of public drunkenness and disorderly conduct
were met, though road on which defendant was arrested was located in a private
community; the community was "public" in that it consisted of residents of the homes of
the community, their guests . . . all of whom utilized the road." Commonwealth V.
Whritenour, 751 A.2d 687, (Pa. Super. 2000), appeal denied 761 A.2d 550, 563 Pa. 701.
8. An individual may be convicted of public drunkenness under this section,
even though the arrest for the offense is made on private property. Commonwealth v.
Johnson, 47 Pa. D.&C.3d 261 ((1986).
4
9. "Manifest" is defined as apparent to the senses or the mind; obvious. [See
Webster's New World Compact Office Dictionary, Fourth Edition 2003].
10. The observations by Sergeant Archey and Patrolman Stirk concerning the
Defendant, as set forth in Conclusion of Law #4 above, establish beyond a reasonable
doubt the element of the Defendant being "manifestly" under the influence of alcohol or a
controlled substance.
In consideration of the foregoing we enter the following
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5
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
: CR 2700-2014
v.
JAMES M. STRUNK,
DEFENDANT
HON. TIMOTHY M. SULLIVAN PRESIDING JUDGE
JACKIE ATHERTON-BERNARD, ESQUIRE CHIEF ASST. DISTRICT ATTY.
EDWARD E. ZANG, ESQUIRE COUNSEL FOR DEFENDANT
ORDER
AND NOW, this I '7-rt. day of September, 2015, based upon the foregoing
Findings of Fact and Conclusions of Law, it is hereby ORDERED, DIRECTED and
DECREED that the Defendant, James M. Strunk, is adjudicated guilty of the
summary offense of Public Drunkenness. A sentencing date shall be scheduled under
separate Order.
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