J-A05035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN E. THOMA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1005 WDA 2019

Appeal from the Judgment of Sentence Entered February 21, 2019

In the Court of Common Pleas of Indiana County Criminal Division at 

No(s): CP-32-CR-0000993-2018

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 23, 2020

Jonathan E. Thoma (Thoma) appeals from the judgment of sentence 

imposed by the Court of Common Pleas of Indiana County (trial court) after a 

jury convicted him of disorderly conduct graded as a third-degree 

misdemeanor.

1

 On appeal, he raises a sufficiency challenge to his conviction. 

After review, we find there was sufficient evidence to convict for disorderly 

conduct but not as a third-degree misdemeanor.

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* Retired Senior Judge assigned to the Superior Court.

1 Thoma mistakenly indicates that he is appealing the denial of his postsentence motion. When timely post-sentence motions are filed, an appeal 

properly lies from the judgment of sentence made final by the denial of those 

post-sentence motions. See Commonwealth v. Kuykendall, 2 A.3d 559,

560 (Pa. Super. 2010).
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On August 13, 2018, around 9:25 p.m., Pennsylvania State Police 

Troopers Roland and Onder were on patrol when they received a report of an 

intoxicated driver in a Jeep Cherokee at a nearby Sheetz. Upon arriving there, 

Trooper Roland spotted Thoma pumping gas into a Jeep Cherokee. Trooper 

Roland then pulled his cruiser in front of the Jeep and stared at Thoma. 

Startled by the trooper’s sudden appearance, Thoma turned away and walked

toward Sheetz, leaving the gas nozzle in the Jeep. As Thoma walked to the 

store, Trooper Roland got out of his cruiser and yelled for him to stop. Thoma 

complied and walked back to Trooper Roland.

Trooper Roland told Thoma he was there for a reported intoxicated 

driver and asked him if he had identification. Because he had a bench warrant 

for his arrest, Thoma gave Trooper Roland the name of his brother, Jason 

Thoma. But when a search revealed that his brother lived in Florida, Trooper 

Roland told Thoma that he would need to be fingerprinted in order to confirm 

his identity. Upon hearing this, Thoma became upset and argued with the 

troopers but Trooper Roland replied there was no other way to confirm his 

identity.

Realizing that the troopers would find out about his bench warrant, 

Thoma turned from Trooper Roland and began running away through the 

parking lot. The troopers immediately gave chase and warned Thoma that 

they would deploy their tasers if he did not stop. When he would not stop, 

Trooper Roland deployed his taser but missed. Trooper Onder then fired his 
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and hit Thoma in the back. Thoma fell and hit his head on the ground, 

knocking him out momentarily. When he came to, he pulled his arms and 

kicked out his legs in an effort to push himself up off the ground. Trooper 

Roland told him to calm down but Thoma continued to struggle for several 

minutes, requiring the troopers to hold him down so he could not get up. He

eventually stopped and was taken for medical treatment for his head.

Thoma was charged by criminal information with false identification, 18 

Pa.C.S. § 4914(A), and disorderly conduct under 18 Pa.C.S. § 5503(a)(1), 

charged as a third-degree misdemeanor pursuant to § 5503(b). For disorderly 

conduct, the Commonwealth alleged that Thoma “was physically combative 

with Pennsylvania State Troopers as they were attempting to take him into 

custody.” Thoma eventually proceeded to a jury trial where he was acquitted 

of false identification but convicted of disorderly conduct graded as a thirddegree misdemeanor. Waiving his right to a pre-sentence investigation, 

Thoma was sentenced to 12 months’ probation that same day. He then filed

a post-sentence motion alleging there was insufficient evidence to convict him 

of either disorderly conduct or the enhanced grading. After that motion was 

denied, Thoma filed this appeal to challenge the sufficiency of the evidence 

for disorderly conduct.

2

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2 We apply the following standard of review for a sufficiency challenge:
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Thoma was convicted under Subsection 5503(a)(1) of the disorderly 

conduct statute, which reads in pertinent part as follows:

(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;

(2) makes unreasonable noise;

(3) uses obscene language, or makes an obscene gesture; 

or

(4) creates a hazardous or physically offensive condition by 

any act which serves no legitimate purpose of the actor.

(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.

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A challenge to the sufficiency of the evidence is a question of law, 

subject to plenary review. When reviewing a sufficiency of the

evidence claim, the appellate court must review all of the evidence 

and all reasonable inferences drawn therefrom in the light most 

favorable to the Commonwealth, as the verdict winner. Evidence 

will be deemed to support the verdict when it establishes each 

element of the crime charged and the commission thereof by the 

accused, beyond a reasonable doubt. The Commonwealth need 

not preclude every possibility of innocence or establish the 

defendant’s guilt to a mathematical certainty. Finally, the trier 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. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citation 

omitted).
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(c) Definition.--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. § 5503.3

In its Pa.R.A.P. 1925 opinion, the trial court found that there was

sufficient evidence to convict Thoma of disorderly conduct:

[T]he entire incident took place in the parking lot of an operating

Sheetz store; this obviously constitutes a public place within the

meaning of the Disorderly Conduct statute. Next, it is clear that

[Thoma] engaged “in fighting or threatening, or in violent or

tumultuous behavior.” [Thoma’s] intentional, culpable conduct

consisted of running from uniformed police officers, ignoring

commands to stop given by the police officers, running through

the first taser hit (thereby requiring the firing of a second taser),

and pulling his arms away and kicking his legs in an attempt to

push up despite the physical efforts and verbal commands of the

police officers. Given the nature and extent of [Thoma’s] actions,

[Thoma], at the very least, recklessly created a risk of causing

public inconvenience, annoyance, or alarm.

Trial Court Opinion, 5/30/19, at 6.

Thoma concedes that he was combative with the troopers but disputes

that the Commonwealth presented sufficient evidence to establish that he

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3 The offense of disorderly conduct is intended to protect the public. 

Commonwealth v. Fedorek, 946 A.2d 93, 100 (Pa. 2008) (“Certainly, 

Section 5503 is aimed at protecting the public from certain enumerated 

acts.”). “The offense of disorderly conduct is not intended as a catchall for 

every act which annoys or disturbs people; it is not to be used as a dragnet 

for all the irritations which breed in the ferment of a community. It has a 

specific purpose; it has a definite objective, it is intended to preserve the 

public peace.” Commonwealth v. Hock, 728 A.2d 943, 947 (1999) 

(quotation omitted).
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intended to or recklessly created the risk of a “public inconvenience,

annoyance or alarm.” “The mens rea requirement of Section 5503 demands 

proof that appellant by [his] actions intentionally or recklessly created a risk 

[of causing] or caused a public inconvenience, annoyance or alarm.” 

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005) 

(quotation omitted). The specific intent requirement “may be met by a

showing of a reckless disregard of the risk of public inconvenience, annoyance,

or alarm, even if the appellant’s intent was to send a message to a certain

individual, rather than to cause public inconvenience, annoyance, or alarm.” 

Id. (citation omitted).

There was sufficient evidence that Thoma committed the actus reus of 

the offense by engaging in “fighting or threatening, or in violent or tumultuous 

behavior.” Moreover, because it took place in the Sheetz parking lot, Thoma’s

conduct related to the public because it was “affecting or likely to affect 

persons in a place to which the public or a substantial group has access.” 18 

Pa.C.S. § 5503(c). As to whether he had the intent to cause a public 

inconvenience, Thoma speculates that he could not have formed an intent 

when he was combative with police officers because he had just regained 

conscious from being tasered and was confused. However, this argument 

ignores the events leading up his takedown. When asked for his identity, 

Thoma gave the troopers his brother’s name, presumably in the hopes that 

he would not be taken into custody on a bench warrant; but when he was told 
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that he would be taken to be fingerprinted, Thoma became upset and 

eventually ran away from the troopers so that he would not be taken into 

custody. Even after he was subdued and handcuffed, Thoma struggled with 

the troopers for several minutes until he complied and stopped trying to get 

up. See N.T., 2/19/19, at 26. Additionally, all of this occurred in a public 

place—a Sheetz parking lot—at a time when, according to Trooper Roland, 

there were vehicles parked and people at the store.

Overall, viewing this evidence in a light most favorable to the 

Commonwealth, Thoma’s conduct is sufficient to make out summary 

disorderly conduct because he engaged in defined conduct “with intent to 

cause public inconvenience, annoyance or alarm, or recklessly creating a risk 

thereof.” Members of the public that viewed this conduct were reasonably 

inferred to have been annoyed or alarmed by this conduct to make out 

summary disorderly conduct.

While the evidence is sufficient to establish summary disorderly conduct, 

the issue then is whether the conduct was sufficient to make misdemeanor 

disorderly conduct. As charged in the criminal information, the 

Commonwealth was required to show that Thoma persisted in his disorderly 

conduct “after reasonable warning or request to desist.” 18 Pa.C.S. 

§ 5503(b). To establish the enhanced grading, the Commonwealth asked 

Trooper Roland if he said anything to Thoma once he regained consciousness. 

Trooper Roland replied as follows:
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I gave him commands to sit still. At that point he was pulling his 

arms away and kicking his legs and trying to push up. I told him 

that he was under arrest and to calm down.

N.T., 2/19/19, at 25.

This answer, which constitutes the sum of evidence the Commonwealth 

presented to establish the enhanced grading, is not enough to raise disorderly 

conduct from a summary to a misdemeanor. Trooper Roland testified that 

Thoma was already under arrest and placed in handcuffs when he regained

consciousness. Once Thoma began to try and push himself up, Trooper Roland

simply told him to “sit still” and “calm down.” This is not enough. These 

comments were standard commands made any time someone is arrested and 

exhibits resistance. They were not, as we read Section 5503(b) to 

contemplate, warnings to Thoma that he would suffer additional consequences 

or criminal liability if he did not desist in his behavior. Accordingly, we reverse 

Thoma’s conviction on misdemeanor disorderly conduct and remand for 

sentencing on summary disorderly conduct.

Jurisdiction relinquished.

President Judge Emeritus Bender joins the memorandum.

Judge Bowes files a dissenting statement.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/2020