Commonwealth of Pennsylvania v. Mark A. Haynes, David M. Whitcomb and Daniel H. Graff

York, PA - The Commonwealth of Pennsylvania charged Mark A. Haynes, David M. Whitcomb and Daniel H. Graff official oppression in violation of 18 P.S. 903, conspiracy in violation of 18 P.S. 5301 and harassment in violation of 18 P.S. 2709 claiming that they defendants county prison guards staged fights between inmates as part of a "Fight Club" that pitted inmates against one another. The State claimed that Defendant Graff was "the ring leader" and called Whitcomb his "sidekick." It claimed that the defendant guards were running the York County Prison like a "frat house" that victimized the inmate.



Various former prison inmates testified against the Defendants.



§ 903. Criminal conspiracy.



(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:



(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or



(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.



(b) Scope of conspiratorial relationship.--If a person guilty of conspiracy, as defined by subsection (a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, to commit such crime whether or not he knows their identity.



(c) Conspiracy with multiple criminal objectives.--If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.



(d) Joinder and venue in conspiracy prosecutions.--



(1) Subject to the provisions of paragraph (2) of this subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if:



(i) they are charged with conspiring with one another; or



(ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.



(2) In any joint prosecution under paragraph (1) of this subsection:



(i) no defendant shall be charged with a conspiracy in any county other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired;



(ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and



(iii) the court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial.



(e) Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.



(f) Renunciation.--It is a defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.



(g) Duration of conspiracy.--For purposes of 42 Pa.C.S. § 5552(d) (relating to commission of offense):



(1) conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired;



(2) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and



(3) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.



(Apr. 28, 1978, P.L.202, No.53, eff. 60 days)







1978 Amendment. Act 53 amended subsec. (g).



Cross References. Section 903 is referred to in sections 4120, 5702 of this title; sections 5552, 6302 of Title 42 (Judiciary and Judicial Procedure).



Sec.

5301. Official oppression.

5302. Speculating or wagering on official action or

information.

5303. Liability for reimbursement of costs for outside

counsel.



Enactment. Chapter 53 was added December 6, 1972, P.L.1482,

No.334, effective in six months.

Cross References. Chapter 53 is referred to in section

5508.3 of Title 53 (Municipalities Generally); section 6017 of

Title 64 (Public Authorities and Quasi-Public Corporations).

§ 5301. Official oppression.

A person acting or purporting to act in an official capacity

or taking advantage of such actual or purported capacity commits

a misdemeanor of the second degree if, knowing that his conduct

is illegal, he:

(1) subjects another to arrest, detention, search,

seizure, mistreatment, dispossession, assessment, lien or

other infringement of personal or property rights; or

(2) denies or impedes another in the exercise or

enjoyment of any right, privilege, power or immunity.





§ 2709. Harassment.



(a) Offense defined.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:



(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;



(2) follows the other person in or about a public place or places;



(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;



(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;



(5) communicates repeatedly in an anonymous manner;



(6) communicates repeatedly at extremely inconvenient hours; or



(7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).



(a.1) Cyber harassment of a child.--



(1) A person commits the crime of cyber harassment of a child if, with intent to harass, annoy or alarm, the person engages in a continuing course of conduct of making any of the following by electronic means directly to a child or by publication through an electronic social media service:



(i) seriously disparaging statement or opinion about the child's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or



(ii) threat to inflict harm.



(2) (i) If a juvenile is charged with a violation of paragraph (1), the judicial authority with jurisdiction over the violation shall give first consideration to referring the juvenile charged with the violation to a diversionary program under Pa.R.J.C.P. No. 312 (relating to Informal Adjustment) or No. 370 (relating to Consent Decree). As part of the diversionary program, the judicial authority may order the juvenile to participate in an educational program which includes the legal and nonlegal consequences of cyber harassment.



(ii) If the person successfully completes the diversionary program, the juvenile's records of the charge of violating paragraph (1) shall be expunged as provided for under section 9123 (relating to juvenile records).



(b) Stalking.--(Deleted by amendment).



(b.1) Venue.--



(1) An offense committed under this section may be deemed to have been committed at either the place at which the communication or communications were made or at the place where the communication or communications were received.



(2) Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.



(3) In addition to paragraphs (1) and (2), an offense under subsection (a.1) may be deemed to have been committed at the place where the child who is the subject of the communication resides.



(c) Grading.--



(1) Except as provided under paragraph (3), an offense under subsection (a)(1), (2) or (3) shall constitute a summary offense.



(2) An offense under subsection (a)(4), (5), (6) or (7) or (a.1) shall constitute a misdemeanor of the third degree.



(3) The grading of an offense under subsection (a)(1), (2) or (3) shall be enhanced one degree if the person has previously violated an order issued under 23 Pa.C.S. § 6108 (relating to relief) involving the same victim, family or household member.



(d) False reports.--A person who knowingly gives false information to any law enforcement officer with the intent to implicate another under this section commits an offense under section 4906 (relating to false reports to law enforcement authorities).



(e) Application of section.--This section shall not apply to constitutionally protected activity.



(e.1) Course of conduct.--(Deleted by amendment).



(f) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:



"Communicates." Conveys a message without intent of legitimate communication or address by oral, nonverbal, written or electronic means, including telephone, electronic mail, Internet, facsimile, telex, wireless communication or similar transmission.



"Course of conduct." A pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct. The term includes lewd, lascivious, threatening or obscene words, language, drawings, caricatures or actions, either in person or anonymously. Acts indicating a course of conduct which occur in more than one jurisdiction may be used by any other jurisdiction in which an act occurred as evidence of a continuing pattern of conduct or a course of conduct.



"Emotional distress." A temporary or permanent state of mental anguish.



"Family or household member." Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.



"Seriously disparaging statement or opinion." A statement or opinion which is intended to and under the circumstances is reasonably likely to cause substantial emotional distress to a child of the victim's age and which produces some physical manifestation of the distress.







(June 23, 1993, P.L.124, No.28, eff. imd.; Oct. 2, 1997, P.L.379, No.44, eff. 60 days; Dec. 15, 1999, P.L.915, No.59, eff. 60 days; Dec. 9, 2002, P.L.1759, No.218, eff. 60 days; Nov. 27, 2013, P.L.1061, No.91, eff. 60 days; July 10, 2015, P.L.140, No.26, eff. 60 days; Nov. 4, 2015, P.L.224, No.59, eff. 60 days)







2015 Amendments. Act 26 amended subsecs. (c)(2) and (f) and added subsecs. (a.1) and (b.1)(3) and Act 59 amended subsec. (e). See the preamble to Act 59 of 2015 in the appendix to this title for special provisions relating to legislative intent.



2013 Amendment. Act 91 amended subsec. (c) and added the def. of "family or household member" in subsec. (f).



2002 Amendment. See sections 9 and 10 of Act 218 in the appendix to this title for special provisions relating to references to section 2709 and references to section 5504.



Cross References. Section 2709 is referred to in sections 4954, 4955, 5708 of this title; section 3304 of Title 5 (Athletics and Sports); sections 6108, 6711 of Title 23 (Domestic Relations); sections 3573, 62A03 of Title 42 (Judiciary and Judicial Procedure).

Whitcomb and Graff were found guilty and Hayes was acquitted.