Sheila Berninger-criminal case revise

Sheila Berninger

COM 665

Criminal Case

March 1, 2007

Homestead Man Convicted of Crime that Would Put Hamburglar to Shame (Alternate title? Sorry, I had to…)

Naked Homestead Man Gets More Than Just Fries With His McDonald’s Order
The Superior Court of Pennsylvania on February 20, 2007, rejected a Homestead, Pa, man’s appeal to indecent exposure and disorderly conduct charges stemming from his lewd behavior at the local McDonalds.
Joseph Patrick Thiry was sentenced for these charges on March 28, 2006, in Allegheny County Court and appealed the charges on May 30, 2006.
On September 25, 2005, at approximately 3 a.m., Thiry was found passed out in the drive-thru lane of a McDonald’s restaurant in Homestead with his pants unbuttoned and his genitals exposed, according to McDonald’s employee Charles Flewellen.
Flewellen testified in court that he went outside to investigate a traffic jam in the drive-thru lane when he noticed the defendant’s parked car was blocking the other cars. Flewellen said he looked in the car window and saw Thiry unconscious with his pants unbuttoned, his penis exposed, and a bottle of lotion sitting next to him. Flewellen and a customer then shouted at Thiry and shook his car, trying to wake him up.
When Thiry woke up but refused to cooperate, Flewellen called the police. Police Officer Christopher Mordaunt responded to the call. Mordaunt gave a slightly different story in court. He saw Thiry with his pants unzipped but said his genitals were not exposed because his hands and a bottle of lotion were covering his lap.
This was not the first time Thiry had shaken things up at the McDonald’s drive-thru. Flewellen testified in trial court that he recognized Thiry from the night before, when the defendant tried to place a drive-thru order at 3 a.m. after the McDonald’s had closed. The Homestead McDonald’s drive-thru policy is to stay open 24 hours; however, management can close down if business is unusually slow. Few customers had placed drive-thru orders that night so the restaurant closed, Flewellen said. Thiry yelled at Flewellen when he refused to serve him.
The jury chosen by the Allegheny County Court convicted Thiry of indecent exposure and disorderly conduct, ordered him to pay a $300 fine plus costs, and banned him from going to the McDonald’s. Thiry was represented by Stephen Taylor of the county’s Public Defender’s Office during trial and also when he filed an appeal. “It would have been nice for the Defendant if the Commonwealth would have offered a summary disorderly conduct instead of the M2 Indecent Exposure,” Taylor said. “However, that offer was never made so the Defendant decided to roll the dice and see if the judge would cut him a break. He didn’t.”
Thiry made two claims in his appeal. First, he claimed that there was insufficient evidence to establish that he purposefully exposed himself at the McDonalds. Second, he alleged that the trial court abused its discretion in not scheduling a hearing to reexamine the evidence in the case.
Thiry argued that because he was unconscious, he did not intentionally behave in a manner meant to offend anyone. The trial court’s definition of indecent exposure is “if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.” The court also stated that even though the defendant was unconscious at the time that Flewellen saw him, he knew that he would be exposing himself before he passed out. Consequently, Thiry knew that his behavior would no doubt “offend, affront, or alarm” the McDonald’s cashier at the drive-thru window and any other late-night customers who saw him.
Thiry’s second argument was that the trial court purposefully did not schedule a hearing to address his claim that the trial counsel was ineffective. He requested that the evidence of his guilt in the case should be presented at a hearing for reconsideration. However, when Thiry requested a hearing, the trial court did not have the jurisdiction to schedule one. He filed his appeal 60 days after being convicted, and an appeal can only be altered by, for example, requesting a hearing) within 30 days of its filing. The trial court argues that it did not abuse its discretion because it did not have the power to schedule a hearing at the time requested by Thiry. Judge Colville, who issued the 12-page opinion on this case, could not be reached for comment.
The Superior Court agreed with the trial court’s decision that Thiry did knowingly expose himself at the McDonald’s, making him guilty of indecent exposure and proving wrong his first grounds for appeal. The Superior Court also rejected Thiry’s second grounds for appeal that the trial court abused its discretion in failing to schedule a hearing to address his claim that trial counsel was ineffective. Thiry’s argument did not hold up. He was caught with his pants down, both in court and out. “After representing people charged with multiple robberies who are on probation for burglaries and then seeing that this guy did not have a serious record I see the result as justified by the facts but less than appropriate based on all the facts that we see in criminal court on a daily basis,” Taylor said. “He got a break on the sentence but not on the charge.”