J-A31045-14
2015 PA Super 11
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT STEPHEN FORREY
Appellant No. 2159 MDA 2013
Appeal from the Judgment of Sentence entered November 12, 2013
In the Court of Common Pleas of Adams County
Criminal Division at No: CP-01-CR-0000544-2013
BEFORE: BOWES, OTT, and STABILE, JJ.
OPINION BY STABILE, J.: FILED JANUARY 16, 2015
Appellant, Robert Stephen Forrey, appeals the judgment of sentence
entered for his convictions of scattering rubbish and disorderly conduct
(unreasonable noise). We agree with Appellant that the evidence of
unreasonable noise is insufficient to sustain his conviction of disorderly
conduct. Accordingly, we affirm in part and reverse in part.
On the evening of June 3, 2013, two Pennsylvania State Police
troopers were patrolling U.S. Route 15 in Adams County.1 At about 11:45
p.m., they observed a red Dodge pickup truck stopped on the shoulder. The
truck’s lights were off, and it appeared to be disabled. The troopers parked
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1
Unless otherwise noted, we take this factual summary from the Trial Court
Pa.R.A.P. 1925(a) Opinion, 1/28/14, at 1-3.
J-A31045-14
behind the truck, activated the police car’s emergency lights for safety, and
got out to investigate.
After the troopers exited their vehicle to speak to Appellant, they
discovered a large debris trail extending from the truck about 25′ to 75′
down an embankment and into a wooded area. The debris included glass,
papers, mail, TVs, VCRs, large boxes, trash bags with clothes, clocks, what
appeared to be a stereo cabinet, and a United States flag.
Appellant gave the troopers his name and address, but refused to
answer other questions. Instead, he began to scream and curse. He
repeatedly walked to the roadway, toward oncoming traffic. One of the
troopers placed Appellant in handcuffs to prevent him from running away.
During the encounter, Appellant yelled at the troopers, “all you fucking cops
are communists just like Obama,” “[t]his fucking country sucks,” and “[y]ou
better watch your back.” N.T. Summary Trial, 11/12/13, at 6-7. Appellant
was yelling loud enough that one of the troopers could hear him ten feet
down the embankment. At some point, officers from a local police
department arrived to assist the troopers.
The troopers arrested Appellant and charged him with misdemeanor
desecrating a flag of the United States, summary scattering rubbish, and
summary disorderly conduct by making unreasonable noise.2 Appellant
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2
18 Pa.C.S.A. §§ 2102(a)(4), 6503(a)(1), and 5303(a)(2), respectively.
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could not make the $1,500.00 monetary bail, and spent eight days in the
county prison until he negotiated a reduction in bail. Appellant requested
dismissal of the flag-desecration charge, challenging the constitutionality of
the statute. In response, the Commonwealth requested the charge be
withdrawn, or for the trial court to enter a nolle prosequi (the record is
unclear). The trial court dismissed the charge pretrial, found Appellant
guilty of the two remaining offenses after a summary trial, and imposed
fines of $200.00 for each offense, plus costs. After his post-sentence motion
was denied, Appellant appealed to this Court.
Appellant challenges his disorderly conduct conviction on two fronts.
First, he argues his statements did not constitute unreasonable noise,
because no members of the public were present at the scene, and the
incident occurred on the shoulder of a highway in a sparsely populated area.
Second, he argues his statements are protected speech under the First
Amendment.
In challenges to the sufficiency of the evidence, “our standard of
review is de novo, however, our scope of review is limited to considering the
evidence of record, and all reasonable inferences arising therefrom, viewed
in the light most favorable to the Commonwealth as the verdict winner.”
Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). Evidence is
sufficient if it can support every element of the crime charged beyond a
reasonable doubt. Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.
Super. 2014). The evidence does not need to disprove every possibility of
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innocence, and doubts as to guilt, the credibility of witnesses, and the
weight of the evidence are for the fact-finder to decide. Id. We will not
disturb the verdict “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.” Id. (quotation omitted).
As charged in this case, “[a] person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he . . . makes unreasonable noise[.]” 18 Pa.C.S.A.
§ 5503(a)(2). 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. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)
(quotation omitted).
As explained in Maerz, we use a two-part test to determine whether a
person’s actions constitute disorderly conduct (unreasonable noise). Id. A
court looks at the content of a person’s speech only to infer the requisite
mens rea (intent or recklessness). Id. “Ultimately, however, what
constitutes the actus reus of “unreasonable noise” under the disorderly
conduct statute is determined solely by the volume of the speech, not by
its content.” Id. (emphasis in original).
“Pennsylvania law defines unreasonable noise as ‘not fitting or proper
in respect to the conventional standards of organized society or a legally
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constituted community.’” Commonwealth v. Gilbert, 674 A.2d 284, 287
(Pa. Super. 1996) (quoting Commonwealth v. Mastrangelo, 414 A.2d 54,
58 (Pa.), appeal dismissed, 449 U.S. 894 (1980)).
In Maerz, for example, the defendant’s single, profane outburst yelled
at a neighbor across the street at 9:45 p.m. was deemed insufficient
unreasonable noise to constitute disorderly conduct. Maerz, 879 A.2d at
1270. The Commonwealth failed to show that the outburst jeopardized the
public peace, or that the noise was “absolutely inconsistent with the
residential neighborhood’s tolerance levels or standards. No evidence
was offered as to why the public peace in this particular neighborhood could
not survive a passing, albeit very loud, vocal noise during evening hours.”
Id. at 1271 (emphasis added).
Similarly, in Gilbert, we found insufficient evidence of unreasonable
noise where the defendant “openly disagreed” with a police officer who was
towing his neighbor’s car. Gilbert, 674 A.2d at 285-86. At best, the record
reflected that the defendant spoke to the officer and yelled across the street
to his neighbor. Id. at 287. “The arresting officer testified that half the
neighbors eventually came out to the street to view the ‘ruckus.’ However,
no evidence was produced that that the level of noise was inconsistent
with neighborhood tolerance or standards.” Id. (emphasis added).
In contrast, in Commonwealth v. Alpha Epsilon Pi, 540 A.2d 580,
583 (Pa. Super. 1988), we affirmed a disorderly conduct citation of a college
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fraternity where noise from its late-night partying could be heard fifty yards
away from the fraternity house.
Given the time of day, the officer’s ability to hear the noise from
a distance of fifty yards during a warm, summer night, and the
initial complaint to the officer which was made by a resident
living at least one block away, we cannot say that the trier of
fact could not have found the noise to have been unreasonable.
Id.
Viewing all the evidence in this case in a light most favorable to the
Commonwealth, Appellant’s conviction of disorderly conduct cannot stand.
The evidence of unreasonable noise is insufficient. The Commonwealth
failed to present any evidence that the volume of Appellant’s speech was
inappropriate for the place at which it occurred: alongside a rural highway,
out of hearing of any residential community or neighborhood. The
Commonwealth correctly points out that Appellant was yelling loud enough
that a trooper heard him down the trash-strewn embankment. However,
even when viewing the evidence in a light most favorable to the
Commonwealth, there is no evidence that any member of the public heard
Appellant. The arresting troopers could not account for the number of
motorists who passed by, and none of the troopers or police officers testified
that any driver noticed Appellant based on the volume of his outburst.3 Id.
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3
We emphasize that we do not condone Appellant’s boorish, intemperate
actions. Additionally, because Appellant was not charged under other
subsections of 18 Pa.C.S.A. § 5503(a), we express no opinion whether
(Footnote Continued Next Page)
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It is true that a highway is, by statute, a public place. 18 Pa.C.S.A.
§ 5503(c). However, being in public is merely necessary, but not alone
sufficient, to convict of disorderly conduct. The Commonwealth must also
prove the particular act requirement, that the noise here was unreasonable,
i.e., inconsistent with neighborhood tolerance or standards. Gilbert, 674
A.2d at 287. The evidence here does not support such a finding. Highways
and rural, sparsely populated areas have a higher tolerance for loud noises,
unlike residential neighborhoods. See Commonwealth v. Koch, 431 A.2d
1052, 1058 (Pa. Super. 1981) (en banc) (holding that “continuous barking of
dogs, albeit most annoying, housed in a kennel in a rural community” did
not constitute unreasonable noise sufficient to sustain disorderly conduct
citation). In this case, no evidence supports the finding that Appellant’s
shouts—though loud—were heard by any passing drivers. Like the
proverbial tree falling in a forest, noise is not unreasonable if nobody hears
_______________________
(Footnote Continued)
evidence might be sufficient to sustain a conviction under those other
subsections.
We recognize that Appellant wandered toward the roadway and oncoming
traffic, causing the troopers to handcuff him, and that he threatened the
troopers. These actions, however, cannot sustain his conviction of disorderly
conduct as charged. Appellant was not charged with disorderly conduct by
“creat[ing] a hazardous or physically offensive condition by any act which
serves no legitimate purpose of the actor,” or by “enga[ing] in fighting or
threatening, or in violent or tumultuous behavior.” 18 Pa.C.S.A.
§ 5503(a)(1) and (4).
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it, because noise that is heard by no member of the public cannot be
inconsistent with community or neighborhood standards.
The Commonwealth argues that it needed to prove only that a
member of the public could have heard Appellant. Appellee’s Brief at 21
(discussing Mastrangelo). In Mastrangelo, 414 A.2d at 55-56, the
defendant hurled insults at a meter maid on the public street of a borough in
full view and hearing of bystanders. The passage of Mastrangelo the
Commonwealth quotes, however, is from the factual background section of
our Supreme Court’s opinion. The main issues were facial and as-applied
constitutional challenges to 18 Pa.C.S.A. § 5503(a)(2). Our Supreme Court
summarily disposed of the defendant’s sufficiency-of-the-evidence
argument, and included no detailed discussion as to the evidence necessary
to show unreasonable noise. Rather, the talisman of unreasonableness is
whether the noise level is inconsistent with the standards of a recognized
neighborhood or community. As we have explained above, the
Commonwealth did not meet that standard here.
The Commonwealth cannot sustain Appellant’s conviction of disorderly
conduct. Appellant’s outburst does not meet the standard of unreasonable
noise required by 18 Pa.C.S.A. § 5503(a)(3).4 The judgment of sentence is
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4
In light of our conclusion, we need not address Appellant’s argument that
his outburst constituted speech protected by the First Amendment. See
Commonwealth v. Einhorn, 911 A.2d 960, 977 n.10 (Pa. Super. 2006)
(Footnote Continued Next Page)
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reversed in part, and the case is remanded to the trial court to remit the
$200.00 fine for disorderly conduct.
Judgment of sentence affirmed in part and reversed in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
_______________________
(Footnote Continued)
(“[A] court should not reach [a] constitutional claim if a case can properly be
decided on non-constitutional grounds[.]”).
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