J-A17031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HAROLD S. MACAULEY

Appellant No. 1843 EDA 2014

Appeal from the Judgment of Sentence June 3, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006025-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 22, 2015

Appellant, Harold S. Macauley, appeals from the judgment of sentence 

entered in the Delaware County Court of Common Pleas, following his bench 

trial convictions for harassment and disorderly conduct.1 We affirm. 

In its opinion, the trial court set forth the relevant facts of this case as 

follows:

On June 14, 2013, Appellant visited United Furniture 

Warehouse located in Holmes, Pennsylvania to pick up a 

set of bunk beds that his wife had ordered a few months 

prior. Mahmoud Eid, an employee of United Furniture, was 

working that day. When [Appellant] arrived at the store’s 

warehouse, he produced a receipt for the furniture. The 

receipt bore a woman’s name, so Mr. Eid asked [Appellant] 

to sign the receipt and produce his driver’s license so that 

[Mr. Eid] could make a copy for the store’s records. 

____________________________________________

1 18 Pa.C.S.A. §§ 2709(a)(3) and 5503(a)(4), respectively.
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[Appellant] refused to give his driver’s license to Mr. Eid. 

[Appellant], angered by [Mr. Eid’s] request, began to 

scream at Mr. Eid that [Appellant] “need[ed] his stuff.” 

[Appellant] then went to his car, and returned with his 

driver’s license, which he then provided to Mr. Eid. Mr. Eid 

told [Appellant] that [Mr. Eid] was going to make a copy 

and would return and asked [Appellant] to wait while [Mr. 

Eid] went inside the warehouse. Appellant refused, and 

followed Mr. Eid into the warehouse, actually into the office 

area of the warehouse. Mr. Eid made several requests for 

[Appellant] to leave and warned him that if he didn’t leave, 

[Mr. Eid] would call the police. Appellant continued to 

follow Mr. Eid, and Mr. Eid called the police. 

The two began arguing, and [Appellant] exited the 

warehouse and told Mr. Eid, “you’re going to feel sorry, 

asshole.” Mr. Eid remained in the loading dock area of the 

warehouse with a co-worker, watching [Appellant]. [Mr. 

Eid] observed Appellant retrieve a gun from his car which 

he “slid to get ready for a shot.” Upon observing this, Mr. 

Eid shut the warehouse door and called the police a second 

time. [Appellant] returned to the warehouse and knocked 

on the office door and told Mr. Eid that [Appellant] needed 

his license back. Mr. Eid told [Appellant] that [Mr. Eid] 

would return it after the police arrived.

[Appellant] testified at trial and admitted that he went to 

his truck and chambered a round in his gun. He said he 

felt threatened by Mr. Eid and maintained that Mr. Eid told 

[Appellant] that [Mr. Eid] would “kick his ass.”

Thereafter, the police arrived on the scene and took 

statements from all involved. Appellant was placed under 

arrest and charged with terroristic threats, harassment and 

disorderly conduct. 

(Trial Court Opinion, filed October 15, 2014, at 1-2). Procedurally, following 

a bench trial on June 3, 2014, the court convicted Appellant of harassment 

and disorderly conduct. On that same date, the court sentenced Appellant 

to a $150.00 fine for each count and ordered Appellant to stay away from 
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the warehouse. On July 3, 2014, Appellant filed a timely notice of appeal, 

along with a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(b). 

Appellant raises the following issues for our review:

WAS THE EVIDENCE INSUFFICIENT TO SUPPORT 

APPELLANT’S SUMMARY CONVICTION FOR HARASSMENT 

WHERE THERE WAS NO EVIDENCE THAT HE ENGAGED IN 

A COURSE OF CONDUCT TO ALARM OR SERIOUSLY ANNOY 

MR. EID WHICH COURSE OF CONDUCT SERVED NO 

LEGITIMATE PURPOSE? 

WAS THE EVIDENCE INSUFFICIENT TO SUPPORT 

APPELLANT’S SUMMARY CONVICTION FOR DISORDERLY 

CONDUCT WHERE THERE WAS NO EVIDENCE THAT HE, 

WITH INTENT TO CAUSE PUBLIC INCONVENIENCE, 

ANNOYANCE, ALARM OR RECKLESSLY CREATING A RISK 

THEREOF, CREATED A HAZARDOUS OR PHYSICALLY 

OFFENSIVE CONDITION BY ANY ACT WHICH SERVED NO 

LEGITIMATE PURPOSE? 

ALTERNATIVELY, WAS APPELLANT’S SENTENCE FOR THE 

HARASSMENT CONVICTION ILLEGAL SINCE IT MERGED 

WITH HIS CONVICTION FOR DISORDERLY CONDUCT? 

(Appellant’s Brief at 4).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Gregory M. 

Mallon, we conclude Appellant’s issues one and two merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of those 

issues. (See Trial Court Opinion at 3-5) (finding: (1) Appellant followed Mr. 

Eid into warehouse and office, despite being told repeatedly not to do so; 

Appellant followed Mr. Eid without any legitimate purpose and with intent to 
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threaten Mr. Eid; evidence was sufficient to support harassment conviction; 

(2) Appellant retrieved and chambered gun in public place, without 

legitimate purpose and with intent to cause public inconvenience, annoyance 

and alarm; evidence was sufficient to support disorderly conduct conviction). 

Accordingly, as to Appellant’s issues one and two, we affirm on the basis of 

the trial court opinion. 

In his third issue, Appellant argues the harassment sentence is illegal 

because it should have merged with disorderly conduct for sentencing 

purposes. Appellant asserts merger is appropriate because identical facts 

supported both convictions and all of the elements of harassment are 

included in the elements of disorderly conduct. Appellant concludes this 

Court should vacate his judgment of sentence. We disagree. 

The Pennsylvania Crimes Code defines the crime of harassment in 

pertinent part as follows: 

§ 2709. Harassment

(a) Offense defined.—A person commits the crime 

of harassment when, with intent to harass, annoy or 

alarm another, the person:

* * *

(3) engages in a course of conduct or repeatedly 

commits acts which serve no legitimate purpose[.]

18 Pa.C.S.A. § 2709(a)(3). Disorderly conduct is defined in relevant part as 

follows: 

§ 5503. Disorderly conduct
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(a) Offense defined.—A person is guilty of 

disorderly conduct if, with the intent to cause public 

inconvenience, annoyance or alarm, or recklessly 

creating a risk thereof, he:

(4) creates a hazardous or physically offensive 

condition by any act which serves no legitimate 

purpose of the actor. 

* * *

(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.A. § 5503(a)(4) and (c) (emphasis added). 

“A claim that crimes should have merged for sentencing purposes 

raises a challenge to the legality of the sentence. Therefore, our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730, 

70 A.3d 810 (2013) (citing Commonwealth v. Allen, 24 A.3d 1058, 1062 

(Pa.Super. 2011)). Whether two offenses merge for sentencing now turns 

on Section 9765 of the Sentencing Code, which addresses merger and 

provides: 

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the 

crimes arise from a single criminal act and all of the 

statutory elements of one offense are included in the 

statutory elements of the other offense. Where crimes 
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merge for sentencing purposes, the court may sentence 

the defendant only on the higher graded offense. 

42 Pa.C.S.A. § 9765 (emphasis added). 

Instantly, a conviction for harassment requires a person to: (1) intend 

to harass, annoy or alarm another person; and (2) engage in a course of 

conduct or repeatedly commit acts that serve no legitimate purpose. See 18 

Pa.C.S.A. § 2709(a)(3). On the other hand, to commit disorderly conduct, a 

person must: (1) intend to cause a public inconvenience, annoyance or 

alarm, or recklessly create a risk thereof; and (2) create a hazardous or 

physically offensive condition by any act which serves no legitimate purpose. 

See 18 Pa.C.S.A. § 5503(a)(4). The plain language of the respective 

statutes demonstrates merger is inappropriate. Harassment, unlike 

disorderly conduct, requires actions or conduct directed at another person. 

Disorderly conduct, however, requires a person to create a hazardous or 

physically offensive condition, an element that harassment lacks. As each 

offense requires proof of an element that is absent from the other offense, 

Appellant’s convictions do not merge for sentencing.2 See 42 Pa.C.S.A. § 

9765. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

____________________________________________

2 Appellant’s reliance on Commonwealth v. Whetstine, 496 A.2d 777 

(Pa.Super. 1985), is misplaced. Merger law has evolved substantially since

the time that case was decided. Instead, Section 9765 and the “elements” 

approach to merger govern Appellant’s issue. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015
Circulated 07/09/2015 03:36 PM
Circulated 07/09/2015 03:36 PM
Circulated 07/09/2015 03:36 PM
Circulated 07/09/2015 03:36 PM